An ongoing and central debate amongst estate law jurists concerns the level of compliance with formal statutory requirements courts should demand when probating wills. In recent years, several Canadian provincial jurisdictions have updated their requirements for the validity of wills, signaling a potentially widespread shift from the strict to the substantial compliance doctrine. In February 2012, the Wills and Succession Act (WSA) replaced the Wills Act, Intestate Succession Act, Survivorship Act, Dependants Relief Act and Section 47 of the Trustee Act as the provincial statute governing estates, wills, intestacy, and succession. This new legislation signaled several changes in estate and property law in Alberta, including adopting a substantial compliance framework. Alberta courts can now validate and correct wills that do not adequately meet all statutory requirements. Courts can also, under certain circumstances, add a testator’s signature to an unsigned will.
Edmunds Estate: The Scope of Sections 37 and 39
Sections 37 (“Court may validate non-compliant will”) and 39(1)(2) (“Rectification”) of the WSA state the following:
37 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. […]
39(1) The Court may, on application, order that a will be rectified by adding or deleting characters, words or provisions specified by the Court if the Court is satisfied, on clear and convincing evidence, that the will does not reflect the testator’s intentions because of (a) an accidental slip, omission or misdescription, or (b) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will.
(2) Subsection (1) applies to the omission of the testator’s signature only if the Court is satisfied on clear and convincing evidence that the testator (a) intended to sign the document but omitted to do so by pure mistake or inadvertence, and (b) intended to give effect to the writing in the document as the testator’s will.
This new power is not absolute. The decision Edmunds Estate, 2017 ABQB 754 circumscribes the court’s authority under the new Act, specifically concerning its Section 37 power to validate statutorily non-compliant wills. In this case, the Court considered whether it could legally exercise its discretion to validate Dolores Edmunds’ unsigned will. Edmunds had previously executed a valid will giving life interest in her estate to her husband, who, at the time of her death, was suffering from dementia and living in a care facility.
Towards the end of her life, Edmunds had become close to her nephew-in-law, Richard Hood. After her death, Hood petitioned the Court under Sections 37 and 39 of the WSA to validate an unsigned will Edmunds had prepared, naming him as the heir of her estate and And executor. Edmunds had communicated these intentions to a paralegal, though she had never seen nor signed the final draft of her new will prepared by the paralegal before passing away unexpectedly.
The Court considered the wording of Section 39 of the Act when determining whether it could exercise its discretion to add or subtract from Edmunds’ will to match it with her true testamentary intentions. Section 39 of the WSA only addresses situations in which the will does not reflect the testator’s intentions due to an “accidental slip, omission or misdescription, or; a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will.” The Court must be satisfied with “clear and convincing evidence that the testator (a) intended to sign the document but omitted to do so by pure mistake or inadvertence, and (b) intended to give effect to the writing in the document as the testator’s will.” The Court decided that there was insufficient “clear and convincing evidence” that the unsigned will reflected Edmund’s testamentary intentions. It rejected Hood’s application to probate the unsigned will.
The Court notes that, while parallel dispensing and rectification provisions exist in other jurisdictions, the scope of Sections 37 and 39 in Alberta’s WSA is comparatively narrow. Justice C.M. Jones suggests that the Legislature’s organization of the statutes provides an explanation for his conclusion: The Legislature addresses unsigned wills in Section 39, a rectification provision vesting the Court with the power to match wills with their testators’ “evidenced inventions.” This provision contrasts with Section 37, a dispensing provision concerning wills that do not meet formal statutory requirements. Section 37 authorizes the Court to add signatures to unsigned wills. This power is constrained by a lack of clear and convincing evidence that the deceased had only mistakenly left her will unsigned.
Notably, Section 37 does not waive the requirement for a will to have been signed by its testator. Craig Estate (Re), 2018 ABQB 830 affirms this precedent. The Court, citing Edmunds, says that neither Section 37 nor 39 “extends to the broader dispensation provisions in other jurisdictions.” Alberta, while statutorily a substantial compliance jurisdiction, is much more restrictive in its approach than other provinces, like British Columbia. Estate attorneys practicing in Alberta will want to be mindful of this approach when advising their clients whether to pursue litigation. Beneficiaries and interested parties should be sure before trying to probate noncompliant documents that they are confident in them as valid testamentary instruments.