The recent Saskatchewan King’s Bench decision in Hunt v Hunt, 2023 SKKB 190 confronted a rather unique circumstance. The question was whether an executor who has renounced her right to probate an estate, can later rescind that renunciation.

In the situation in Hunt, the Court concluded that such renunciation could be rescinded, as no probate had yet been issued in this Estate.

Factual background:

The factual background was summarized as follows:

1. Gwendolyn Kathleen Hunt (”Gwendolyn”) died on October 12, 2019;
2. In her Last Will and Testament executed on December 29, 2014 (“Will”), Gwendolyn appointed her two children—Rayna Brandy Hunt, and Cory Robin Hunt—as co-executors of her estate;
3. Rayna averred that she did not see a copy of the Will until April 2020, six months following the death of her mother. It was then Rayna allegedly first learned Gwendolyn had appointed her as a co-executor of the Estate. Cory disputed this, and said that he gave Rayna a copy of the Will at the funeral home in October 2019, and Rayna then balked and said Cody would have to handle the Estate;
4. In April 2020, Rayna executed a renunciation, but it was not in the proper form;
5. In January 2021, Rayna executed a renunciation which was, this time, in the proper form under Rule 16-16(2) of The King’s Bench Rules;
6. In April 2021, Rayna later however decided that she did in fact wish to administer the Estate. She came to this conclusion before any grant of probate had issued in this Estate;
7. Rayna said that she came to this new conclusion, as Cory had not been diligent in managing Gwendolyn’s Estate, and Rayna now desires to be actively and fully involved in the Estate’s

Issue:

The issue before the Court was whether Rayna could lawfully rescind her renunciation.

Findings by the Court:

The Court decided that Rayna could in fact rescind her renunciation. In doing so, the Court examined the below issues.

What is the law governing the renunciation of probate:

There are formal requirements which must be complied with for a renunciation to be effective. There are also certain common law principles relevant to when such a renunciation may be rescinded.

Rule 16-16(2) of The King’s Bench Rules deals with renunciation. It states:

16-16…

(2)        If an executor does not apply for a grant, the executor shall renounce in Form 16-16.

Section 12 of The Administration of Estates Act, SS 1998, c A-4.1 sets out the legal consequences flowing from a renunciation of probate. Subsection 12(a) provides the below:

Renouncing probate

12 Where a person who is named as an executor by a will renounces probate of the will:

(a) the person’s rights with respect to the executorship and any trusteeship pursuant to the will cease; and

When can an executor rescind their renunciation?

There are a few Canadian decisions which discuss when an executor can properly rescind a renunciation.

For example, the Court in Hunt cited the Nova Scotia Court of Appeal in Re MacIssac and MacDonald, (1983), 1983 CanLII 2835 (NS CA), 148 DLR (3d) 553 (NS CA), for the proposition that after letters probate are granted, an executor may be permitted to renounce only if it is shown that to do so “was in the best interests of the estate and all those interested therein”.

However, the Court in MacIssac had made clear that there was no outright prohibition on allowing an executor to rescind a renunciation.

Decision of the Court in Hunt:

The Court held that, as no probate had been made, the law was clear that it was permissible for an executor to rescind an earlier renunciation.

The Court held that Rayna could rescind her renunciation:

[35]             Accordingly, I am persuaded that Rayna’s request to rescind her renunciation of probate executed on January 30, 2020, should be granted. I would note as well that allowing Rayna to continue as a co-executor of Gwendolyn’s estate accords with her mother’s wishes as set out in the Will.

…

[39]            Accordingly, for these reasons, I direct that Rayna’s renunciation of probate executed on January 30, 2020 is rescinded. As co-executors, the parties should now move with reasonable dispatch to apply for letters probate respecting Gwendolyn’s estate.

The Court made no order as to costs. The Court found that each party had acted reasonably in placing this uncertain situation to the Court for clarity. The Court held that each party was to bear his or her own costs.

Conclusion:

Situations in which executors renounce are not extremely common. Thus, situations of rescinding a renunciation are even less common. That said, the guidance in Hunt is of interest to estate practitioners. It offers a lesson that if an executor renounces, but later has a change of heart, the executor may well be able to rescind that renunciation if probate has not issued, and there have not been interim developments which make it impractical to now rescind the renunciation.

The situation would be different in another factual scenario. If much time had passed after a renunciation, and another executor had stepped into the role and performed various actions in that office, it would be far less likely that a Court would allow a renunciation to be withdrawn.

The recent Saskatchewan King’s Bench decision in Gilchrist v Gilchrist, 2023 SKKB 187 offers a reminder of the importance of updating your will. If you do not update your will, and certain beneficiaries named in your will have died before you, the legal outcome may be one that does not reflect your intentions.

Factual background:

1. Dawn Jacqueline Gilchrist (the “Deceased”) died on August 18, 2022;
2. The issue in Gilchrist was whether or not the Deceased’s estranged brother, William, should receive any share of the Deceased’s Estate under the Intestate Succession Act, 2019, SS 2019, c I-13.2 (“Act”);
3. The Deceased had died with three surviving siblings – Glendon Gilchrist (“Glendon”), Lorraine Gilchrist (“Lorraine”) and William Gilchrist (“William”);
4. However, in the mid-1990s, William was convicted of having indecently assaulted the Deceased while she was a minor. William denied then, and he denied now, that he had indecently assaulted the Deceased;
5. That said, there did appear to be evidence that the Deceased did not intend to give any of her Estate to William. The Deceased’s executor, Glendon Gilchrist (“Glendon”) pointed to the sexual assault conviction. Furthermore, the Deceased had had no contact with William during her adult life. The Deceased had conducted herself as though William did not exist. In contrast, she did remain in a relationship with her other two siblings – Glendon and Lorraine (who were also explicitly named in her will);
6. Moreover, there was evidence that, in the days before she died, Lorraine and the Deceased had discussed the prospect of the Deceased amending her will to reflect the fact that their parents had already died. Lorraine says that on August 17, 2022, the Deceased asked her to have a lawyer come to the hospital so that the Deceased could amend her will to leave her estate to Glendon and Lorraine. Lorraine arranged for a lawyer to attend at the hospital on August 18, 2022, but the Deceased died in the early morning of that day;
7. Lorraine provided evidence that that “It was clear from my discussions with the Deceased that she had no idea that any law existed that could cause part of her estate to go to William because her parents were named in the Will and were deceased;”
8. Given this background, Glendon, as executor, applied for an order that the residue of the Deceased’s estate (“Estate”) be divided equally between him and Lorraine Gilchrist, with no part going to William Gilchrist.

Will left by the Deceased:

To place the decision in Gilchrist in context, we must understand the will left by the Deceased and understand what the intestacy regime is:

1. On March 8, 1991 the Deceased executed a will (“1991 Will”). It had been prepared by a Saskatoon lawyer. In the 1991 Will, the Deceased provided specific bequests to Glendon and Lorraine. She then provided that the residue of her Estate (i.e. what was left over) would go to her parents. William was not among the beneficiaries named in the will.
2. As it turned out, the Deceased’s parents died before she did. Her father, John, died on May 19, 1995. The Deceased mother, Elsie, died on December 9, 2016;
3. The Deceased did not amend her will or replace it with another at any time after executing her will in 1991. It is undisputed that when she died on August 18, 2022, the Deceased’s gift of the residue of her Estate to her parents had lapsed, as both parents had predeceased her. In law, when a testamentary gift is given to someone, but then that person has died before the gift takes effect, the gift generally lapses into intestacy (subject to a few exceptions which did not operate here);
4. Intestacy refers to a situation in which a specific estate property is not specifically distributed under a will. In such cases, such property is to be distributed under the direction provided by Intestate Succession Act, 2019, SS 2019, c I-13.2;
5. This Act provides for a series of classes (classes of family members of the deceased) who have various levels of priority to take the intestate property. These rights apply by operation of law, and do not depend on whether or not the deceased actually wanted them to receive any property. Many non-lawyers may not even know the details of the Act and not even be aware that such laws may affect their estate property after their death;
6. Again, it must be noted that the Act and its regime can be opted out of. All someone needs to do is to have a valid will which specifies where the property is to go. It is only in cases where the will is silent that the Act comes into play;
7. Here, the Act provided that where someone dies with no children or parents having survived them, any undistributed estate property goes to the siblings. The Act had no exception for a situation in which one surviving sibling had been convicted of an offence against the testator (although such an exception may be a good idea for future law reform);
8. As such, when the Deceased in Gilchrist died, it appears that s. 8 of the Act operated to cause the residue of her Estate to go in equal shares to her surviving siblings, Glendon, Lorraine and William.

Issue:

Against this background, Glendon argued that the residue of the Estate should be distributed to only Glendon and Lorraine, with none of it going to William. Glendon asserts that it would be contrary to the Deceased’s testamentary intention for any part of her Estate to go to William.

Findings by the Court:

Before turning to the outcome in Gilchrist, we survey what principles govern the interpretation of a will.

What information does a Court consider when interpreting a Will?

Typically, most wills are clearly written and can be plainly interpreted. Where a will is unambiguous, routinely courts interpret the will without reference to any other extraneous information outside the four corners of the will.

If however a phrase in a will is ambiguous, there may be a need to go beyond the testator’s written words, and into surrounding facts. This can help to ascertain and implement the testator’s testamentary intention.

Again, however, where a will is not ambiguous, a Court should not look to extraneous evidence outside the four corners of the will.

A Court cannot speculate as to what a testator would have intended to write in their Will, had they turned their mind to a hypothetical situation:

In Gilchrist, the Court ultimately concluded that Saskatchewan law only permits a judge to interpret the existing words used in a Will. The Court cited the below from prior caselaw:

20 The court’s only objective in interpreting a will is to ascertain and give effect to the intention of the testator, as expressed by the language of the will, at the time the will was executed.^[1]

[emphasis added.]

Glendon was able to locate a prior Ontario decision – Frohlich Estate v. Wedekind, 2012 ONSC 3775 – in which an Ontario court had concluded that it was appropriate to speculate as to what a testator would have intended had she turned her mind to a particular circumstance. In Frohlich, the court concluded that the deceased would not have intended to give a lapsed share of her estate to her family (the family were virtual strangers to the deceased). Rather, she would have intended to give it to the other named residuary beneficiaries in her will. The court in Frohlich reached this conclusion despite the fact that the will simply did not contain any ambiguity – it was clear that the residual portion had lapsed, and thus fell into the statutory intestacy regime.

The outcome in Frohlich was likely morally fair – as it reflected what the deceased likely intended but had failed to provide for, by taking timely steps to update her will. The Court in Gilchrist felt however that such an approach was not the law in Saskatchewan.  Gilchrist reaffirmed that in Saskatchewan, a Court must interpret the words that the testator chose to use. The Court was not allowed to speculate on what a testator might have done had they considered a certain situation. The Court wrote:

[28]        Glendon accurately identifies Frohlichas a case in which the court determined what would have been the testator’s testamentary intention if she had turned her mind to a particular circumstance, and if she then had addressed that circumstance in her will. With respect, though, I am not persuaded that the armchair rule has evolved to empower a court to do so.

Outcome in Gilchrist:

Ultimately, the Court held that the residue fell under the intestacy regime of the Act, and therefore went to Glendon, Lorraine and William.

The Court held that it was not permitted to speculate as to what the Deceased would have intended if she had turned her mind to the prospect of her parents dying before she died. Such was not the proper task of the Court. The Court’s proper task was simply to ascertain and give effect to the testator’s intention, as expressed by the existing language of the will.

In this situation, the existing language was clear – there were no alternate residual beneficiaries set out by the Deceased. The Deceased had simply not turned her mind to the possibility of who should receive her residue in the event her parents predeceased her:

26   On March 8, 1991 Dawn did not turn her mind to the prospect of her parents dying before she died, and so when she executed her will on that day she had no testamentary intention in that regard. There is no testamentary intention, relating to an alternate residual beneficiary, for the court to ascertain.

Finally, the Court held that even if the Court had been prepared to speculate as to what the Deceased would have intended in this situation, the evidence available was not sufficient to lead the Court to a certain and definite conclusion as to who would have been named (as of 1991, the date of the Will) as the residual beneficiaries:

32 …The evidence that is before me, though, is not sufficient to support the conclusion that on March 8, 1991 Dawn would have intended to name Glendon and Lorraine as residual beneficiaries. While they were named beneficiaries of specific bequests at that time, there may have been others in Dawn’s life in 1991 that she would have considered as residual beneficiaries. The evidence does not establish who, if anyone, Dawn would have chosen as an alternate residual beneficiary in 1991.

Costs order in Gilchrist:

The Court in Gilchrist did however order that both sides would have their solicitor-client costs (i.e. their dollar for dollar legal costs) paid out of the Estate. This meant that the losing party did not have to bear their own costs, or pay costs to the other side.

The Court held that the general rule of costs in estate litigation involving the interpretation of wills, is that the parties’ costs are to be paid out of the estate. This approach ensures that the will is interpreted in a manner that accurately reflects the intention of the testator.

Lessons offered by Gilchrist:

• Thus, in light of Gilchrist, lawyers are reminded that a Saskatchewan court will confine its interpretative exercise to the written words actually used in a will. It appears that a Saskatchewan court will not go on to (like the Ontario decision in Frohlich) speculate as to what the testator would have intended had they turned their mind to a given situation.

The practical lesson of Gilchrist is that people need to update their wills. If they do not do so, they risk a very harsh result. A court is not permitted to make a fresh will for a testator merely because the testator failed to take steps to update their will.

Intestacy regimes – which provides an order of who is entitled to intestate estate – are statuary tools. The intestacy regime we have is beneficial in that its brings stability to those situations in which the testator has not left direction for given property. While this can cause unintended results, and unfair outcomes, such are an unavoidable necessary side-effect of the law’s need for predictable and certainty. Without intestate legislation, the law would be forced to enter a slippery slope, of trying to speculate what a deceased person intended. Such situations would invite much litigation, with attendant cost and delay. Moreover, the court would still not be sure of always getting it right (because the testator, after all, is not here to testify as to what they truly intended).

The way to avoid the harsh results of intestacy legislation is to take matters into your own hands, and ensure that your will reflects your wishes. You must ensure that it accounts for potential scenarios in which some of your beneficiaries may die before you.

^[1] Citing Ellingson v Ellingson, 2017 SKQB 14 at para 20, 23 ETR (4th) 221 at para 20.

The recent Saskatchewan King’s Bench decision in Gibb Estate (Re), is an example of the Court’s ability to render a document effective as a testamentary document, even if said document was executed without all the formal requirements of the Wills Act, 1996.

Factual background:

1. This matter concerned the Estate of William George Gibb (“Deceased”).
2. The Deceased had died on April 28, 2022. He had left a will executed June 29, 2018 (“Will”).
3. The Executrix, Leora Harlingten, from North Battleford, was one of two stepdaughters of the Deceased. The other stepdaughter was Helen Sawatsky of Saskatoon. They are named in the Will as the residual beneficiaries, to each receive an equal share of the Estate.
4. Paragraph 11 of the Will referred to the Deceased’s intention to create an attachment which would speak to his wishes for certain specific gifts. The Will said:
   11. I give specific gifts as are identified on attachment “A”, attached to my Last Will and Testament and such attachment is incorporated and is part of this Last Will and Testament.
5. The Deceased had left two different documents as “attachments” to his Will.
6. The issue before the Court was which of the two documents was the valid attachment to the Deceased’s Will, for the purpose of admitting the documents for probat

1. The original document (“Original Attachment”) attached to the Will did not make any reference to any specific bequest to Jessica Shaw (“Ms. Shaw”);
2. The Subsequent Attachment added a specific bequest of $20,000.00 to be given to “Jessi Shaw … the administrator of RBM the company I work for at the time of this writing.” 

7. In other words, the key practical difference was whether a bequest of $20,000 would go to Ms. Shaw, or not.
8. Shaw provided the below evidence:

1. That she had met the Deceased in early 2019 when she began working at RBM Architecture Inc. in Saskatoon where the Deceased worked. The Deceased became close to Ms. Shaw and her family, spending Christmases and special occasions together;
2. That while he was dying in hospital, the Deceased asked Ms. Shaw to retrieve and keep a binder of important documents from his house, which included his will and the attachment providing the $20,000 bequest to her. As well, the binder included email exchanges between the Deceased and Adsit.

9. After the Deceased’s death, Shaw handed the binder over to the Executrix. About a month later, Ms. Shaw received a letter from the Executrix’s lawyer demanding that monies the Deceased gifted to her be repaid. Ms. Shaw also learned that the Executrix was taking issue with the Deceased’s bequest to her of $20,000.
10. Melissa Widger (“Widger”), the daughter of the Deceased’s step-daughter, Helen Sawatsky, filed an affidavit in support of Ms. Shaw’s position. Widger recounted that the Executrix contacted her on March 27, 2022, to advise that the Deceased was diagnosed with cancer. The Executrix also told Widger that she was concerned that the Deceased had appointed Shaw his power of attorney and that he had changed his will.
11. The Deceased had also sent a November 23, 2020 email to his lawyer, Ms. Adsit, saying the below:

Hi Marilyn

Hope you are keeping safe.

Our entire office is working from home.

A definite different way to live.

I have attached a revised list to be attached to my will.

I have added Jessi to receive cash.

Please indicate receipt of this e‑mail.

If you have any questions call or e‑mail.

Thank‑you

William George Gibb 

Issue:

The issue was whether the Subsequent Attachment complied with s. 37 of the Wills Act, 1996, and should be given effect to as a testamentary instrument. If such document was a valid testamentary instrument, then the gift of $20,000 would go to Ms. Shaw.

Findings by the Court:

1. Was the Subsequent Attachment testamentary under s. 37?

Under s. 37 of the Wills Act, 1996, a court has the power to hold that a document that was not executed with all due formalities, is still valid if it embodies the testamentary intention of the deceased:

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:

1. 1. the testamentary intentions of a deceased; or
   2. 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.

For a document to be considered testamentary under s. 27, a Court must apply the following test: Did the document represent the fixed and final expression of intention of the deceased, as to the disposal of their property on death?

The Court in Gibb Estate determined that the Subsequent Attachment of November 23, 2020 was indeed testamentary. It set out a deliberate expression of the Deceased’s intention to dispose of his property by including the specific bequest to Ms. Shaw. The Subsequent Attachment thus met all the criteria required by s. 37.

2. Was the Subsequent Attachment actually created by the Deceased:

There was another raised by the Executrix. The Executrix submitted that Ms. Shaw had failed to prove that the Subsequent Attachment was actually made by the Deceased, and sent to Adsit from his own email account.

The Court ultimately found that the Deceased had clearly made the Subsequent Attachment. The Court noted the below facts:

1. Ms. Shaw stated in her affidavit that she did not have access to the Deceased’s work email. Only the Deceased and the owner of RBM Architecture Inc. would have had access to the Deceased’s email;
2. Widger’s affidavit evidence also supports the fact that it was the Deceased who sent the email to Adsit. The Deceased’s told Widger in April 2022 that he had added Shaw to his Will;
3. Moreover, the Court took notice that the Executrix had the full legal right to ask Ms. Adsit, in her role as counsel for he Deceased, to provide any evidence to suggest that the Subsequent Attachment did not come from the Deceased. The Executrix did not however obtain such evidence. The Court drew an adverse inference from this absence of evidence:

[26]    Adsit could have cleared up the issue as to whether she received the Subsequent Attachment from Gibb and knew it to be the document sent to her from Gibb. With no evidence filed by the Executrix on that matter, I must draw the adverse inference that the evidence on this point is clear. That is, Adsit received her instructions from Gibb. Shaw has proven on the balance of probabilities that the Subsequent Attachment setting out the specific bequest to her did indeed emanate from Gibb’s email.

Conclusion:

The Court held that Ms. Shaw had proven that the will with the Subsequent Attachment constituted the last will and testament of the Deceased to be admitted for probate.

The Court also made an order that Ms. Shaw should receive her solicitor and client costs, to cover her legal fees that she had incurred in this application. Such would be paid from the Estate assets:

[28]       Shaw seeks an order that her costs of this application be paid, on a solicitor‑client basis, out of the Estate…

[29]        I agree that Shaw’s costs should be awarded to her on a solicitor‑client basis. There was no dispute as to Gibb’s intention when he made the Subsequent Attachment. The Executrix’s allegation that it was not a document prepared by Gibb was completely unsupported in the evidence. Therefore, Shaw is awarded costs on a solicitor‑client basis, payable out of the Estate.

In making the above costs order, the Court referred to certain Saskatchewan case law which held that the “general rule of costs in estate litigation involving the interpretation of wills is that the parties’ costs are to be paid out of the estate.”

The practical effect of this costs order is significant. For context, the vast majority of all civil litigation in Saskatchewan, results only in partial costs orders for the winner. In other words, the winner is typically only awarded a very partial amount of costs from the other side. This means that the winner still is out of pocket to a large degree, in paying the legal fees of their own lawyers. This dilutes their final financial outcome, even if they win.

Here, the costs order above meant that Ms. Shaw would not be out of pocket for her legal fees, incurred in obtaining the ruling in her favor. It also meant that the Estate residual beneficiaries would have their residual property reduced by the amount of Ms. Shaw’s legal fees. Such costs order are still relatively common in Saskatchewan estate litigation, and show the unique way in which Courts continue to approach costs orders in estate litigation, as compared to general civil litigation.