A recent case of the Saskatchewan Court of Queen Bench offers the following lesson: the Court’s power to “fix” clerical mistakes in Wills, may not necessarily be ordered if there are deeper concerns about the testator’s actual testamentary intentions.

Section 37 of The Wills Act, 1996,  SS 1996, c W-14.1, allows the court to “cure” Wills which have certain flaws in them. Such flaws may include the wrong number of witnesses or some other formality that is missing.

The provision is set out below:

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 intentions 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.

[Emphasis added]

In Thorne, Keili Thorne had applied for a declaration, under s. 37 of The Wills Act, 1996,  SS 1996, c W-14.1, that a document signed by Richard  Thorne (in early October 2014) was fully effective as though it had been properly executed as the will of Mr. Thorne. 

The will had been signed in front of two witnesses, but only one of those witnesses signed the document to indicate that he witnessed Mr. Thorne’s signature. Ordinarily, this application would be a simple matter, and the Court would most likely have cured the Will under s. 37.

However, this particular application was opposed by Lia Tanit Thorne and Brendan Johnston Thorne. Tanit and Brendan argued that the Will had suspicious circumstances regarding Mr. Thorne’s testamentary capacity at the time that he signed the document.

The Court’s decision:

The Court acknowledged that the document looked and read like a will. However, the Court held that s. 37 also requires the court to be satisfied that the document actually sets out the testator’s final testamentary disposition.

The Court recognized that Tanit and Brendan had raised a number of concerns about the testator’s behaviour in 2014:

1. Prior to signing the document, Mr. Thorne had intended to benefit all three of his children equally. The document he eventually signed did not do that;
2. There was evidence (including evidence of people other than the parties) of Mr. Thorne’s positive ongoing relationship with Brendan;
3. Gwenda (testator’s sister) recounted estate planning discussions with Mr. Thorne in which he planned an equal distribution of his estate among his three children.
4. There was evidence suggesting that, around the time that he signed the document, Mr. Thorne faced challenges as to his mental acuity. In his November 14, 2014 email to Gwenda he wrote:

I’m beginning to think we never finished the POA. What we did when she was here was I made her co-administrator of my Honduran Corp. which owns all my assets here. She has the power to sell if she wants. She also has a bunch of signed cheques so she can access the money in my accounts.

But then again I’m not sure. I may have signed some stuff. Sheeeshhh..

5. There was no evidence before the court (other than the document itself) as to Mr. Thorne’s testamentary capacity or intentions at the time that he signed the document;
6. There was no evidence before the court as to the circumstances surrounding the preparation and signing of the document. The court does not know who prepared it, or on whose instructions.

The applicant provided rebuttal evidence, as to show that Mr. Thorne did manifest an intent to make the applicant his sole beneficiary. However, the Court felt faced with a conflict on the evidence as to just what Mr. Thorne truly intended. The Court felt that it was premature for the Court to make a binding determination on the basis of the affidavit evidence before it:

[19]       There remains, though, the evidence supporting the opposite conclusion. The respondents have provided good reasons for doubting that Mr. Thorne had testamentary capacity when he signed the document. In particular I note his long-term plan to benefit all three of his children, the unexplained circumstances surrounding the preparation and signing of the document, and Mr. Thorne’s own expressed uncertainty as to what he had signed.

[20]       Possibly it is simply a matter that Mr. Thorne had had enough of the respondents and had decided to leave everything to the applicant. There are, however, too many outstanding questions surrounding Mr. Thorne’s signing of the document for me to be satisfied with respect to s. 37(a). That is, while I recognize the possibility that Mr. Thorne had testamentary capacity, so that the document embodies his testamentary intentions, I am not satisfied that it is the case. The question cannot be determined only on the evidence that is before me. [emphasis added] 

Therefore, the Court ordered a trial of the issue of whether the document is Mr. Thorne’s will. The applicant, as proponent of the will, would bear the onus of proving the will. The Court awarded the costs of both parties, for this application, out of the Estate.

Lesson:

S.37 is a useful tool to help ensure that a document which embodied the testamentary intention of a deceased, will not fail simply due to an oversight of some formality (i.e. not enough witnesses, etc.)

However, Thorne reminds us that the s. 37 power is not a rubber stamp if there are underlying concerns with the testamentary intention of the testator. Thus, if the Court finds real doubts raised of incapacity or suspicious circumstances, the Court may refuse to “cure” the document until such issues are resolved at trial.  

An interesting lesson for executors comes from the recent Saskatchewan decision in Goby v Frederick, 2020 SKQB 201

Wayne Frederick passed away. His will appointed his sister, Shirley Frederick, to be the executrix of his estate. Shirley obtained letter probate.

However, the only asset in the estate is a piece of land valued at $800. Moreover, the estate of Wayne Frederick owed a lot of debt. Shirley Frederick desired to therefore renounce probate. Shirley discovered that she could not transfer the land in the estate without paying for a valuation, which she said neither she nor the estate can afford.

Shirley Frederick desired to therefore renounce probate, and hoped the Public Guardian would assume the role.

Therefore, the issue in Goby v Frederick was whether an individual has the right to simply automatically renounce as executrix of an estate, after receiving Letters Probate.

The Court held no. An individual cannot renounce, unilaterally, as executrix, after receiving Letters Probate. The Court required that Shirley bring a formal court application to be removed as executrix, and that it be served on the public trustee in view of the minor beneficiaries. An affidavit by

Shirley Frederick was to accompany the application, setting forth evidence of her inability to administer the estate.

The lesson:

Persons who are named executors of problematic estates (i.e. ones with high debt, or whose administration may be difficult to carry out) should be sure that they wish to serve as executor.

Once an executor obtains letters probate, if you later decide you wish to renounce, you may need to go to the expense and time of a court application to do so.
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James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations.