2023 SKKB 55, 2023 SKKB 55

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 55 Date: 20 23 03 10 Docket: SUR-YT-00033-2023 Judicial Centre: Yorkton IN THE ESTATE OF BERTHA ELIZABETH BASS FIAT BERGBUSCH J. March 10, 202 3 Introduction [ 1 ] Bradley Allen Bass applies to have admitted for probate a fill-in-the-blank will with handwritten additions and a document described as a codicil that is entirely handwritten. Considered together, these documents do not meet the formal requirements of The Wills Act, 1996 , SS 1996, c W-14.1 [ Act ].

However, if the court were satisfied that the documents express the testamentary intentions of the deceased, the court could admit them to probate pursuant to s. 37 of the Act . [ 2 ] For the reasons which follow, the ex parte application for letters probate is dismissed. The applicant has leave to apply with notice to interested parties for an order validating the testamentary documents pursuant to s. 37 of the Act . Background [ 3 ] The application is for probate of a will executed by the deceased on August 3, 2013 [Will] and a handwritten document also dated August 3, 2013 [Handwritten List].

The Will is a fill-in-the-blank printed form and is partly typed and partly handwritten. A witness, Barbara Kostesky, has sworn an affidavit of execution of will, in which she attests that she and Ron Kostesky were both present when the deceased signed the Will and they subscribed their names as witnesses. Ms. Kostesky also swore an affidavit of execution of codicil, affirming that she was present when the deceased signed the Handwritten List and that she witnessed Bertha Bass’s signature. [ 4 ] The fill-in-the-blank Will appoints the applicant as the executor. Paragraph 4 of the Will reads as follows: 4.

Any beneficiary who dies within a period of 10 days following my death will be deemed not to have survived me, and their gift will then become part of the residue of my estate. (

a) I DISTRIBUTE my assets as follows: IN THE EVENT THAT I SHOULD PRE-DECEASE MY HUSBAND, LLOYD ALLEN BASS, I WISH TO LEAVE ALL MY WORLDLY POSSESSIONS TO HIM. IN THE EVENT THAT WE SHOULD BOTH PASS AWAY AT THE SAME TIME, WE WISH ALL OUR WORLDLY GOODS TO BE DISTRIBUTED EQUALLY AMONG OUR 2 CHILDREN & OUR DAUGHTER-IN-LAW-LEONA RACHEL (BASS) WOLD, BRADLEY ALLEN BASS & TRACY (ONDYK) BASS.

B) I DISTRIBUTE any residue of my estate as follows: AS LISTED ON ENCLOSED SHEET. [Underlining emphasis added] I have added underlining to identify words written by hand in dark blue ink, to distinguish them from the typewritten portions of the printed form. None of the documents filed – and, in particular, neither of the affidavits – provides a basis for concluding that the “enclosed sheet” mentioned in the Will refers to the Handwritten List. [ 5 ] The Handwritten List is a lined yellow sheet, with handwriting on both sides in ink of three different colours.

The front page is headed, “This is my Will,” and sets out in 16 rows a list of the first names of six people with items (mainly jewellery) next to each name. The list is in blue-green ink . At the bottom of the page, the following is written in black ink : As Brian is deceased, everything above listed for him, is to be given to Brad. see over → “Bertha Bass” [ 6 ] In three places where the name Brian appears, a line has been drawn through his name and the corresponding gift, although the handwriting is still legible. The name Brian appears a fourth time on the list, with another gift, but in that case his

name and the gift are not stroked out. [7] Right above the signature, the words “see over” are handwritten in dark blue ink, with an arrow pointing to theedge of the page.

The back of the page lists two more names (Montana and Tracy) with items next to them in the same dark blue ink.Below those names, the signatures of Bertha Bass and B Kostesky and the date of August 3, 2013 are present. [8] The items listed for Montana (Black Alaska ring and cutlery with chest) and Tracy (Black Alaska earrings anddinner ring) may correspond to the items crossed out on the first page next to Brian’s name, although the descriptions differ somewhat. [9] It seems unlikely that all the handwriting on the Handwritten List was made at the same time, since thedeceased is unlikely to have included Brian’s name in the list if he had died.

Perhaps the list in blue-green ink was made prior to Brian’sdeath, and then Bertha Bass revised the list after Brian died. It is also possible that the revision to the list, in black ink, was made at adifferent time than the additions in dark blue ink, witnessed by Ms. Kostesky. [10] Paragraph 4(

a) of the form Will was intended for listing specific gifts. However, the deceased instead used thisparagraph to give “all [her] worldly possessions” to her husband Lloyd if she predeceased him, or to her son, daughter, and daughter-in-law if her husband and she died at the same time. Paragraph 4(

b) of the form Will was the place for the testator to indicate how the restand residue of her estate was to be dealt with. Instead, the deceased referred to the “enclosed sheet” – intending, perhaps, theHandwritten List which appears to list specific gifts to several individuals. [11] According to certified statements of death filed for both Bertha Elizabeth Bass and Lloyd Allen Bass, Berthadied on January 4, 2023, while Lloyd died on November 16, 2017. Issues [12] The issues that must be addressed are the following: (

a) Whether the Will and/or the Handwritten List meet the requirements of the Act; and (

b) If not, whether the court can admit the Will and/or the Handwritten List for probate pursuant to s. 37 of the Act on an ex parteapplication. Discussion [13] To be valid, a will must satisfy the requirements of s. 7 of the Act, which reads, in relevant part: 7(1) Unless provided otherwise in this Act, a will is not valid unless: (

a) it is in writing and signed by the testator or by another person in the testator’s presence and by the testator’s direction; (

b) it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’swill; (

c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses who are in the presence of the testator atthe same time; and (

d) at least 2 of the witnesses in the presence of the testator: (

i) attest and sign the will; or (ii) acknowledge their signatures on the will.

(2) Subject to subsection (3), no form of attestation by the witnesses is necessary. [14] The formalities set out in s. 7 of the Act are not required if a will is entirely in the testator’s handwriting andsigned by the testator: 8 A holograph will, wholly in the handwriting of the testator and signed by him or her, may be made without any further formality or anyrequirement as to the presence of or attestation or signature by a witness. [15] In the present case, the Will is partly typewritten and partly in the handwriting of the deceased.

Historically inSaskatchewan, a printed form will that included handwritten insertions could only be admitted to probate if the handwriting, on its own,demonstrated the deceased’s testamentary intentions: Forest, Re (1981), (SK CA), 121 DLR (3d) 552 (Sask CA) atparas 6 and 29.

This follows from the wording of s. 8 of the Act, which requires a holograph will to be entirely in the testator’shandwriting. [16] However, s. 37 allows the court to give effect to a document that does not comply with the strict requirements ofthe Act, provided the court is satisfied that the document embodies the deceased’s testamentary wishes: 37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposedby this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or asthe revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where acourt, on application is satisfied that the document or writing embodies: (

a) the testamentary intentions of a deceased; or

(

b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied ina document other than a will. [17] As noted by Baynton J. in Archer Estate (Re), 2005 SKQB 118 at para 9, 15 ETR (3d) 165, this section“provides that the court should, whenever reasonably possible, admit to probate a document that embodies the testamentary intentions ofa deceased even though that document was not executed in compliance with the formal requirements of a proper will”.

Exercising theauthority granted by s. 37, the court has authorized a grant of probate in several instances where the testator had used a standard form,fill-in-the-blank will: see, e.g., Schreiber Estate (Re), 2015 SKQB 96, 473 Sask R 9 [Schreiber] and Giesbrecht v Giesbrecht, 2018SKQB 249, 41 ETR (4th) 307 [Giesbrecht]. Three considerations guide this exercise, as summarized by Layh J. in Schreiber: [13] From these statements I am informed of three matters germane to my deliberation. First, I must be satisfied that the documentembodies Mr. Schreiber’s testamentary intentions.

Second, I am entitled to overlook the formalities of the Act, at least to some extent.Third, I cannot, so to speak, fill in the blanks of Mr. Schreiber’s purported fill-in-the-blanks will. I cannot augment or speculate. [18] In this case, the court will have to consider whether the Will, the Handwritten List, or both express thetestamentary intentions of the deceased. Since both documents appear to have been signed by the testator on the same day and the Willrefers to an “enclosed sheet”, it will be necessary to consider whether the Handwritten List is incorporated by reference in the Will.

InChamberlain Estate (Re), (SK KB), [1976] 1 WWR 464 (Sask QB), Maher J. summarized the conditions for findingthat a document has been incorporated in a will: [7] The conditions to which I have referred are three in number and are as follows: 1. The document must be referred to in the will. 2. The reference in the will must be sufficient to identify the document. 3. The document must be an existing document, and not one which is to come into existence at a future date. [19] Do the words, “AS LISTED ON ENCLOSED SHEET,” handwritten on the standard form Will, sufficientlyidentify the Handwritten List?

Were both documents signed at the same time and witnessed by Ms. Kostesky? Was the Handwritten Liststored with the Will? Did the Handwritten List exist at the time the Will was executed? Extrinsic evidence of the surroundingcircumstances at the time that the testator made the Will can be admitted to interpret her testamentary intentions: Ratzlaff Estate, 2002 SKCA 53 at paras 35-41, 212 DLR (4th) 258.

Such evidence is required in this case to establish whether the “enclosed sheet” the testatorreferred to in the Will was the Handwritten List. [20] Bertha’s Will did not account for the possibility that Lloyd would predecease her. The Will states that allBertha’s worldly possessions were to go to Lloyd if she predeceased him, and if Lloyd and Bertha died at the same time, they wished alltheir worldly goods to be divided equally among Brad, Leona, and Tracy.

In testamentary documents, “worldly goods” has beeninterpreted to mean the whole of the residuary estate: Wizniak and Campbell v Foraie and Kinch (1987), (SK KB), 57Sask R 281 (Sask QB). However, the Will is silent regarding what would happen to all of Bertha’s worldly goods if Lloyd died beforeBertha, which is what happened.

As noted by Layh J. in Schreiber, the court cannot speculate as to the testator’s intentions by filling ingaps in the form Will. [21] Even if the court finds that the Will and Handwritten List are testamentary in nature, the Will does not make agift of the rest and residue of Bertha’s estate in the eventuality that Lloyd predeceased her. This will result in a partial intestacy that willhave to be dealt with in accordance with The Intestate Succession Act, 2019, SS 2019, c I-13.2, which was also the outcome inGiesbrecht.

Although the application lists Bertha’s daughter-in-law, Tracy, as a beneficiary, Tracy is not one of her “descendants” asdefined in The Intestate Succession Act, 2019, and is not entitled to a share of her estate. [22] An additional problem with the application for probate as filed is that it lists only three people as beneficiaries:Bradley, Leona, and Tracy. The Handwritten List appears to list specific gifts for seven beneficiaries: Chelsey, Datoka, Montana, Brian,Brad, Leona and Tracy (spelled as they appear on the Handwritten List). The application should list all the living beneficiaries.

If any ofthem are under the age of 18, notice of the application should also be given to the Public Guardian and Trustee. [23] I have considered whether to grant the applicant leave to file an amended application for letters probate andadditional evidence ex parte for the court’s consideration.

Several published decisions suggest that, in some circumstances, anapplication pursuant to s. 37 of the Act to validate a will can be made ex parte: McDermid Estate, Re, (SK KB),[1995] 1 WWR 366 (Sask QB), Bidulka Estate, Re, 2006 SKQB 196 at para 13, 282 Sask R 273. [24] However, given the problems with the Will and the Handwritten List and the need for additional evidence, Ihave determined that this is not an appropriate case to proceed ex parte: Swanson Estate, 2001 SKQB 429 at para 7, 211 Sask R 219.The executor may apply for an order pursuant to s. 37 of the Act on notice to interested parties.

Conclusion [25] For the foregoing reasons, the application for a grant of probate is dismissed. The executor, Bradley Allen Bass,may bring an application pursuant to s. 37 of the Act to determine whether the Will and/or the Handwritten List embody the testamentary wishes of the deceased and shouldbe admitted to probate. The notice of application and supporting materials should be served on the beneficiaries and the Public Guardianand Trustee if any of the beneficiaries are minors. A copy of this fiat should be served along with the notice of application.

J. P.T. BERGBUSCH