The Wills Act and the Dispensing Power
Section 37 of The Wills Act, 1996—the substantial compliance provision—provides the Court with “dispensing power.” Compared with other jurisdictions, Saskatchewan’s dispensing power is relatively broad. The Court may validate any document it judges the testator has intended to act as their will, regardless of statutory compliance. The Saskatchewan Court of Appeal first ruled on the scope of this power in the 1992 decision Re Bunn Estate. In Bunn, the testator left three documents “of a testamentary nature” in an envelope labeled “Last Will and Testament.” The first was a dated but unsigned handwritten document giving instructions for her funeral and making several bequests. The second was a printed, signed, and witnessed will form revoking all previous wills. The third was an identical document, though unsigned.
Bunn considered a parallel provision to Section 37 of an earlier version of The Wills Act. Per the Court, Section 35.1 of the Act allowed the court to intervene “when less than 100% of the formalities have been met but does not say that the section is operative only upon some minimum level of compliance. The latter interpretation would produce an artificial distinction of an unnecessarily technical nature.” The Court’s decision mirrored the more permissive “any or all” wording from the Manitoba Wills Act, which enacted the country’s first substantial compliance legislation.
Conflicting Guidance from the Jurisprudence
Subsequent Saskatchewan decisions have applied a stricter interpretation of Section 37 of the updated Wills Act than the Court did in Bunn preceding its 1996 revision. Decisions such as Buliziuk v. Pischnot Estate and Re Mate Estate all hold that non-compliant documents admitted under Section 37 for probate must be signed by the testator. These decisions do not cite Bunn. They rely on other jurisprudence to interpret Saskatchewan’s substantial compliance provision.
The decision in Kube (Estate) (Re), 2014 SKQB 291, affirmed by the Court of Appeal in Kube v. Kube, 2015 SKCA 49, discussed this discrepancy in the jurisprudence. In Kube, the applicants and respondents were the nieces and nephews of the deceased, Ken Kube. Kube was not survived by a spouse or children, so in the event of intestacy, his estate would have been shared equally amongst his nieces and nephews. The applicants applied to the Court to validate a photocopied handwritten document they found in Kube’s home. The trial judge noted that, although cases such as the ones listed above supported the position that Manitoba’s substantial compliance legislation only applies to documents that meet at least some of the statutory requirements, the governing decision in non-compliant will validation was and remains Bunn. While Bunn applied a provision from an earlier version of the Act, Section 37 has equivalent wording. It states:
37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by 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 as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, 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 in a document other than a will.
The question then became, pursuant to this provision, whether the document in question expressed the testator’s final testamentary intentions. The Court found that, while this provision does not require any of the formal statutory requirements to be met, there was a “lack of substantial, complete and clear evidence relating [Kube’s] testamentary intentions to the document” in question. The issue of whether the Saskatchewan courts can probate an unsigned document remains open.
A subsequent decision has affirmed the requirement given in Kube. In Matlock v Matlock, 2015 SKQB 378, the testatrix’s son applied to have his mother’s will probated. The document showed his brother’s name scratched out in black ink, and the applicant claimed that his brother had been estranged from the family for a long time. The Court noted that the executor must show that “the document or writing reflects a deliberate or fixed and final expression of a testator/testatrix as to the intention for the disposal of his/her property on death.” Unlike in Kube, the Court noted that the testatrix in Matlock did comply with some formal statutory requirements. This partial compliance made it easier to probate a document that the testatrix had edited. Although she had not made alterations to her last will and testament within the formal requirements of The Wills Act, the Court was convinced that the circumstances of that alteration embodied her final testamentary intentions.
Future Considerations: Post-COVID Developments?
Saskatchewan is certainly a substantial compliance jurisdiction, though it remains to be seen to what degree courts will require compliance with any of the statutory requirements. There may be a case in the future that answers the question: what other statutory requirements and supporting extrinsic evidence can support a document being probated under Section 37 without having been signed by its testator? The 2017 case Fitzpatrick v Ollenberger affirmed Bunn in stating that Section 37 “should be given a broad interpretation, meaning that there is no “minimum” degree of compliance necessary before a court can order a will to be fully effective.”
On the other hand, signing a document may also not be enough to validate it in cases of undue influence or other exacerbating factors. The Court held this in Thorne v Thorne, 2020 SKQB 341. Despite the applicant bringing forward a letter signed by the testator, Richard Bruce Thorne, it could not be declared fully effective. Extrinsic evidence suggested that Thorne lacked sufficient testamentary capacity when he signed his last will and testament. As such, the will could not be validated under Section 37(a) of the Act as it did not embody his testamentary intentions.
At the moment, the clearest way to avoid protracted litigation over non-compliance with formalities is to ensure that any testamentary instrument a testator writes or edits is witnessed. In the wake of COVID-19, the Government of Saskatchewan has enacted The Wills (Public Emergencies) Regulations, impacting The Wills Act, 1996. As a result, the Law Society of Saskatchewan has published guidance on this issue: for non-holographic wills and other wills that may be executed in a less-than-ideal manner, testators should ensure they “are thoroughly documenting these occurrences and the circumstances surrounding them, in the event that evidence is required in a future application for ‘substantial compliance.’”
The recent decision Nicklen Estate, 2021 SKQB 208 summarized the purpose of the Act’s substantial compliance provision: Section 37 does not “empower the court to inject a testamentary intention into a document.” Rather, it allows the Court to validate otherwise formally non-compliant documents that reflect, on a balance of probabilities, the decedent’s testamentary intentions. Importantly, “on a Section 37 inquiry, the court must place substance over form.” This statement aptly summarizes the general intent of substantial compliance and dispensing power legislation: prioritize the substance of a testator’s testamentary documents over the necessary, but secondary, red tape. All of these decisions are indicative of Saskatchewan courts clearly delineating the boundaries of substantial compliance in the province.