Re Mackasey Estate, 2022 ABKB 662

Court of King’s Bench of Alberta Citation: Re Mackasey Estate, 2022 ABKB 662 Date: 20221005 Docket: ES01 132784 Registry: Calgary Court File Number ES01 132784 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Edith Joan Mackasey, also known as E.

Joan Mackasey Applicants (Plaintiffs) Michael John Mackasey in his capacity as co-Personal Representative of the Estate of Edith Joan Mackasey, and Wendy Joan Bunney in her capacity as co- Personal Representative of the Estate of Edith Joan Mackasey Respondents (Defendants) Judith Lynn Mackasey Sandra Manon Mackasey Michael John Mackasey Wendy Joan Bunney _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] This matter came before me in morning civil chambers.

The applicants seek the validation of an alleged will ( Alleged Will ) of E. Joan Mackasey ( Deceased ) pursuant to

section 37 of the Wills and Succession Act , SA 2010, c. W-12.2 ( WSA ) and the validation and/or rectification of an alleged codicil ( Alleged Codicil ) [1] to the Alleged Will pursuant to sections 37 - 39 of the WSA . If their application is successful, they seek leave to proceed with a desk application for a grant of probate.

[ 2 ] The application is unopposed. There is no evidence that the Deceased had a will prior to the Alleged Will, and one of the beneficiaries under the Alleged Will has sworn that they were not aware of one. All of the beneficiaries under the Alleged Will and the Alleged Codicil support the application and have filed affidavits in support of the relief sought. Some of these same individuals comprise the individuals who would be entitled to a distribution in the event that the estate is determined to be intestate. So, all interested parties consent to or support the application. [ 3 ] For the reasons below, and using the

definitions below in these Reasons: (

a) I declare that the Alleged Will is a valid will (the Will ) pursuant to

section 37 of the WSA ; (

b) I declare that the Alleged Typed Codicil at the time of the Blue Handwriting, and together with the Blue Handwriting, together are a valid codicil to the Will pursuant to

section 37 of the WSA ; (

c) If necessary, I declare that the 2008 Handwriting next to the Alleged Typed Manon Disposition, is a valid codicil to the Will pursuant to

section 37 of the WSA ; (

d) The 2008 Handwriting which adds the Alleged Handwritten Wendy Disposition to the Alleged Codicil is not validated or rectified pursuant to sections 37 - 39 of the WSA ; (

e) The applicants have leave to proceed to file a desk application (to my attention) for probate of the Will, the Alleged Typed Codicil (with the Blue Handwriting), and the codicil in the form of the 2008 Handwriting next to the Alleged Typed Manon Disposition; and (

f) The applicants may pay the costs of this application out of the Deceased’s estate. II. Background [ 4 ] On January 21, 2004, the Deceased signed the Alleged Will. It was entitled “THIS IS THE LAST WILL AND TESTAMENT of me, E. JOAN MACKASEY of the City of Calgary, in the Province of Alberta”. There is evidence before me from a long-time friend of the Deceased that the signature on the Alleged Will is in fact the Deceased’s signature. The beneficiaries under the Alleged Will are the Deceased’s son, Michael John Mackasey ( Michael ), and the Deceased’s daughter, Wendy Joan Bunney ( Wendy ).

Michael and Wendy were appointed executors under the Alleged Will and are the joint applicants in this application. [ 5 ] The Alleged Will, on its face, was only witnessed in front of one person, Shirley Tallin, who was indicated to be an accountant living in Calgary ( Witness ). It did not, therefore, comply with the requirements of being signed in the presence of two witnesses at the same time, as per

section 15 of the WSA or predecessor legislation. There does not appear to be any affidavit by the Witness at the time the Alleged Will was prepared and signed by the Deceased, confirming the witnessing of the Alleged Will. [ 6 ] In 2016, Gordon Tallin, the husband of the Witness, and a physician, Dr. Joan Knight, executed a Declaration of Incapacity to Make Decisions about a Personal Matter in respect of the Witness. Pursuant to this Declaration, both Mr. Tallin and Dr. Knight concluded that the Witness, at that time, did not have the capacity to make personal decisions including decisions about legal matters.

Based on this document, the Witness appears to have been unable to analyze basic instructions or advice, suffered from short term memory loss, and had difficult completing sentences and thoughts. Dr. Knight opined that she had severe dementia. Thus, the Witness was unavailable for several years to confirm her signature or that she witnessed the Deceased signing the Alleged Will.

I am advised by counsel that the Witness then died in July 2022. [ 7 ] On April 16, 2020, the Deceased died. [ 8 ] On April 17, 2020, Michael located the Alleged Will in a folder entitled “Will”. [ 9 ] The Alleged Codicil was found with the Alleged Will in this folder. It is typewritten with a typed date of January 24, 2004 and is entitled “CODICIL – Joan Mackasey – January 24, 2004”. There is also handwriting, in two different colours of pen. Only two handwritten entries are dated – one on March 3, 2008 and one in January 2006.

The Alleged Codicil does not have a signature on it in the traditional sense, however there is an undated initial in the bottom-right corner in blue pen, and another initial next to handwriting adjacent to paragraph 1 of the Alleged Typed Codicil dated March 3, 2008 in black pen. There is evidence from a long-time friend of the Deceased that all of the handwriting on the Alleged Codicil is the deceased’s handwriting. [ 10 ] Based on my review of the evidence, including the Alleged Codicil, I find on the balance of probabilities that: (

a) on January 24, 2004, the Deceased or someone on her behalf typed the typewritten portion of the Alleged Codicil ( Alleged Typed Codicil ). The Alleged Typed Codicil included information about the Deceased finances, bank accounts, annuities, and her hopes for dealing with her and her deceased husband’s ashes. It also included a paragraph that stated, at paragraph 1: “I would like Manon to have $5,000 after division of the sale of my condo and pay out of the TD Canada Trust Line of Credit in amount of approximately $43,000.00” ( Alleged Typed Manon Disposition ).

Manon is a reference to Sandra Manon Mackasey ( Manon ), the Deceased’s grand- daughter, Michael’s daughter, and Wendy’s niece. It provided an example of how this payment to Manon would work based on a hypothetical sale price; (

b) sometime after the Alleged Typed Codicil, but before March 3, 2008, the Deceased added to the Alleged Typed Codicil in handwriting using a blue pen ( Blue Handwriting ). The Blue Handwriting included the initials of the Deceased in the bottom-right corner of the Alleged Codicil. The Blue Handwriting purports to provide specific gifts of specific property to specific individuals, including Michael and Wendy, as follows:

a) Gold charm bracelet to Michael

b) New gold band ring with 18 diamonds and 1 sapphire to Wendy to be then given to Manon

c) Sterling cutlery & ½ each to Wendy & Michael

d) Pictures, furniture, etc as you see fit

e) opal ring to Wendy & then Manon

f) Pearl ring to Judy Mackasey & then to Manon ( Alleged Handwritten Judy Disposition ) [2] (

c) in January 2006, the Deceased added in black pen further information about her wishes for her and her deceased husband’s ashes; and (

d) on March 3, 2008, in black pen ( 2008 Handwriting ) the Deceased altered the Alleged Typed Codicil, updated the information respecting the Alleged Typed Manon Disposition, added additional information, and added another specific gift to Wendy in relation to gold and silver bracelets ( Alleged Handwritten Wendy Disposition ). Importantly, the Deceased initialed the changes to the Alleged Typed Manon Disposition.

The other changes to the Alleged Typed Codicil included in the 2008 Handwriting were not initialled. [ 11 ] On March 3, 2021, Michael and Wendy submitted an application for a Grant of Probate, which was rejected on May 6, 2021 with a request for them to correct certain deficiencies. The application was resubmitted on September 8, 2021 and was rejected again by Justice Gates. One of the issues related to the Witness. He indicated that “...it is a very difficult situation that I believe must go to an oral hearing.

One of the terms of the order should be that the medical practitioner who completed the Capacity Assessment Review should be required to come and provide evidence at the hearing.” [ 12 ] Michael, Wendy, Judy and Manon have each sworn affidavits indicating that they have reviewed the Alleged Will and Alleged Codicil and believe that they set out the testamentary intentions of the Deceased as expressed to them during conversations they had during her lifetime. [ 13 ] On March 22, 2022, Justice Neufeld made a limited grant of administration to permit the sale of the Deceased’s condo. [ 14 ] Michael and Wendy both advise that, even if I do not provide the relief sought, as beneficiaries in an intestacy they intend to distribute property in accordance with the Alleged Will and the Alleged Codicil.

III. Issues [ 15 ] The issues on this application are: (

a) Can and should the Alleged Will be validated as a valid will pursuant to

section 37 of the WSA ? (

b) Can and should the Alleged Codicil, or any of its components, be validated or rectified pursuant to sections 37 - 39 of the WSA ? A. The Alleged Will [ 16 ] Section 8(1) of the WSA provides, among other things, that

Part 2 of the WSA only applies to wills made after February 1, 2012, and that the Wills Act , RSA 2000, c W-12 applies in respect of wills made under that Act. However, section 8(2) provides that, despite (1), sections 26 and 37 - 40 of the WSA apply to a will or other writing, a marking or an obliteration regardless of when the will, writing, marking or obliteration was made, if the testator dies after February 1, 2012. Therefore, as this application is brought pursuant to sections 37 - 39 of the WSA , those provisions apply notwithstanding the Alleged Will was executed in 2004. [ 17 ]

Section 37 of the WSA provides: The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with

section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will. [ 18 ]

Section 37 of the WSA permits the Court to validate a writing as a will if it does not comply with the witness requirements set out in

section 15. Therefore, I have the jurisdiction to validate the Alleged Will. The issue is whether I am satisfied “on clear and convincing evidence” that the Alleged Will sets out the Deceased’s “testamentary intentions” and was intended by the Deceased to be her will.

[19] The reference to “clear and convincing evidence” does not change the ordinary standard of proof, it remains the civil standardof proof of a balance of probabilities: Curtis Estate (Re), 2014 ABQB 745 at para 25; Craig Estate (Re), 2018 ABQB 830 at para 16. [20] The reference to “testamentary intentions” requires that there must be a deliberate or fixed and final express of intention as tothe disposal of his/her property on death”: Curtis Estate (Re) at paras 23-24; Smith Estate, 2012 ABQB 677 at paras 10-11.

The greaterthe departure from the requirements of formal validity, the harder it may be for the court to reach the required satisfaction that thedocument contains the deceased’s final testamentary intentions: Curtis Estate (Re) at para 34. [21] I have reviewed the materials provided. The evidence is unopposed. On all the evidence, and having regard to the fact that theapplication is supported by all potential beneficiaries, I do not believe that a hearing is required in respect of the unavailability of theWitness.

I am satisfied on the balance of probabilities that the Alleged Will set out the testamentary intentions of the Deceased, in thesense that it reflected her fixed and final express intention as to the disposal of her property on her death, and that the Alleged Will wasintended by her to be her will.

I base this on the fact that the Alleged Will on its face indicates that it is the Deceased’s last will andtestament, that the Deceased signed it and went to the trouble to having it witnessed before a professional (accountant), that the Deceasedmaintained the Alleged Will in a folder entitled “Will”, and that the Alleged Will’s contents are consistent with what the Deceasedsubsequently advised her family members were her testamentary intentions. [22] Accordingly, I declare that the Alleged Will is a valid will. B.

The Alleged Codicil [23] Similar to my comments above regarding the Alleged Will, pursuant to section 8(2) of the WSA, sections 26 and 37-40 of theWSA apply to the Alleged Codicil, and the writing, markings and obliterations contained in it, notwithstanding they were all made priorto February 2012. [24] A codicil is generally defined as a supplement by which a testator alters or adds to his or her will subsequently: LaidlawEstate, 2010 ABQB 132 at para 11.

It is included in the definition of “will” in the WSA. [25] It is helpful to analyze the Alleged Codicil and its components as they existed over time, as there may be differentconsiderations involved with different writings. The Alleged Typed Codicil [26] As noted above, the Alleged Typed Codicil (including the Typed Manon Disposition) was only typewritten, and was notsigned by the Deceased when it was first created. Because it was not signed, it cannot meet the requirements of a formal will undersection 14 of the WSA. It also cannot be validated as a will (including a codicil) under

section 37 of the WSA, because

section 37 appliesto non-compliance with the formalities in

section 15 (witnesses),

section 16 (holographic wills) and

section 17 (military wills), but not theformalities outlined in

section 14: Hood v South Calgary Community Church, 2019 ABCA 34 at para 30. [27] There is also insufficient evidence to rectify the Alleged Typed Codicil to add the signature pursuant to the test set out insection 39(2) of the WSA, as there is no evidence that the Deceased intended to sign the Alleged Typed Codicil when it was prepared andthen “omitted to do so by pure mistake or inadvertence” or by “accidental oversight”: WSA, section 39(2)(a); Edmunds Estate, 2017ABQB 754 at paras 39-40 and 55; see also Woods v Cannon, 2014 ABQB 614. [28] The Alleged Typed Codicil also cannot be considered as a compliant or non-compliant alteration of the Alleged Will, becauseit was not a writing, marking or obliteration made “on” the Alleged Will as required by section 22(1), and so cannot be validated as analteration of the Alleged Will pursuant to sections 22(1) and 38 of the WSA.

The Blue Handwriting [29] The Blue Handwriting, which was added to the Alleged Typed Codicil later, invokes different considerations than the AllegedTyped Codicil. The Blue Handwriting is entirely in the Deceased’s handwriting, and the Deceased applied her initials in the bottom rightcorner of the Alleged Codicil at that time. The validity of the Alleged Codicil at the time the Blue Handwriting was made can potentiallybe considered (1) for validation under

section 37 of the WSA, as a formal codicil or formal will that is non-compliant with the witnessrequirements of

section 15; or (2) as a valid holograph codicil pursuant to

section 16 of the WSA. There may be other ways tocharacterize this unique situation, but I need not go further than these two characterizations in this case. [30] As noted above,

section 37 of the WSA can only apply if there is a will in writing that contains the “signature of the testatorthat makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document asthe testator’s will”: WSA,

section 14. Absent contrary intention, handwritten initials can constitute a “signature” of the testator, providedthey are a mark intended to represent the testator’s name: Laidlaw Estate at para 18, citing Re McLeod, (AB KB),[1964] AJ No 94, 47 DLR (2d) 370, which in turn cited Re Blewitt (1880), 5 PD 116, 49 LJP 31 and Re McVay Estate (1955), (AB KB), 16 WWR 200.

See also: Bank of Nova Scotia v Ait-Said, 2016 ONSC 4051 at para 37. [31] Section 19(2) of the WSA provides that a will is not invalid because the testator’s signature is not placed at the end of the willif it appears that the testator intended by the signature to give effect to the will. [32] I am satisfied that the placement of the Deceased’s initials in the bottom right corner of the Alleged Codicil at the time theBlue Handwriting was made, constituted her signature and was intended to give effect to the Alleged Codicil in its entirety as it existed atthat time, which includes all of the Blue Handwriting as well as the Alleged Typed Codicil.

I am satisfied on the balance of probabilitiesthat the document at that time set out the testamentary intentions of the Deceased, in the sense that it reflected her fixed and final express

intention as to the disposal of her property on her death, and was intended to be a codicil to her Will. I base this on the fact that the document, on its face is called “Codicil”, that the Deceased affixed her signature in the bottom corner of the document, and that it is consistent with the evidence of the Deceased’s testamentary intentions as described to her family members prior to her death.

The recognition of the Alleged Codicil, with the Blue Handwriting, as a valid will gives effect to the Alleged Typed Manon Disposition and the Alleged Judy Handwritten Disposition. [ 33 ] Even if I am wrong about the Alleged Codicil as it existed at the time of the Blue Handwriting, the Blue Handwriting could also be considered as its own separate writing in the form of a holograph codicil. [ 34 ] A holographic part of any document containing non-holographic writing, may be admitted into probate as a holograph codicil where (1) the document was intended to have dispositive effect; (2) the spurious writing or printing is superfluous or unessential; and (3) the holographic parts are capable of standing by themselves without the spurious printing or writing: Laidlaw Estate at paras 21-23 .

If necessary, I am satisfied that the Blue Handwriting, independently and on its face meets these criteria such that the Blue Handwriting alone can be recognized as a valid holograph codicil. The recognition of the Blue Handwriting as a holograph codicil would give effect to the Alleged Judy Handwritten Disposition, but not the Alleged Typed Manon Disposition.

The 2008 Handwriting [ 35 ] The 2008 Handwriting did two things that may affect distribution of the Deceased’s estate: (1) it updated the Alleged Manon Typed Disposition, with the Deceased’s initials; and (2) it added the Alleged Handwritten Wendy Disposition pertaining to gold and silver bracelets. [ 36 ] With respect to the Alleged Manon Typed Disposition, if necessary the 2008 Handwritten could be considered for validation as a further codicil to the Will that was not compliant with the witness requirements under

section 15 of the WSA . [ 37 ] I am satisfied that the placement of the Deceased’s initials next to her update of paragraph 1 of the Alleged Codicil, at that time constituted her signature and was intended to give effect to the Alleged Manon Typed Disposition.

I am satisfied on the balance of probabilities that the document at that time set out the testamentary intentions of the Deceased and reflected her fixed and final express intention as to the disposal of her property on her death, and was intended to be a codicil to her Will. [ 38 ] With respect to the Alleged Handwritten Wendy Disposition, I am not satisfied that this addition can be validated as a codicil or holograph codicil to the Will, as there is no writing that could constitute a signature associated with that writing.

There is also insufficient evidence to rectify the Alleged Handwritten Wendy Disposition to add a signature to it pursuant to section 39(2) of the WSA , or to validate it as an alteration of the Will pursuant to sections 22(1) and 38 of the WSA . IV. Conclusion [ 39 ] I declare that the Alleged Will is a valid will pursuant to

section 37 of the WSA . [ 40 ] I declare that the Alleged Typed Codicil at the time of the Blue Handwriting, together with the Blue Handwriting, are a valid codicil to the Will pursuant to

section 37 of the WSA . [ 41 ] If necessary, I declare that 2008 Handwriting next to the Alleged Typed Manon Disposition, is a valid codicil to the Will pursuant to

section 37 of the WSA . [ 42 ] The 2008 Handwriting which adds the Alleged Handwritten Wendy Disposition to the Alleged Codicil is not validated or rectified pursuant to sections 37 - 39 of the WSA . [ 43 ] The applicants have leave to proceed to file a desk application (to my attention) for probate of the Will and the Alleged Typed Codicil (with the Blue Handwriting). [ 44 ] The applicants may pay the costs of this application out of the Deceased’s estate. Heard on the 8 th day of August, 2022. Dated at the City of Calgary, Alberta this 5 th day of October, 2022. M.A. Marion J.C.K.B.A. Appearances: Patricia Agoncillo, John E. Fletcher, Gregory J. Kaladeen - MerGen Law LLP

for the Applicants APPENDIX: ALLEGED CODICIL