The recent Saskatchewan King’s Bench decision in Haines v Kuffner Estate is an example of the Court’s ability to validate a document, which may not have been executed with all the normal formalities. This flexibility offers the ability to ensure, as far as possible, that the testamentary wishes of a dying person are upheld.

Background:

The background of Haines involved the below facts:

1. The deceased was Kim Kuffner (“Deceased”). The Deceased, while hospitalized and near death, sent a message (“Message”) on her iPad to her siblings, which she titled “My holographic will;”
2. This Message named an executor, being Rheanne Haines, and provided instructions for the distribution of the Deceased’s estate. The Message read as follows:

My holographic will

Rheanne Haines to be executor.

House and contents to Ryan Haines.

Balance of investments to be split 60% to Ryan Haines and 40% to Rheanne Haines. Rheanne to be pet guardian.

May 19, 2023. Kim Kuffner

3. The Deceased had no previous will, spouse, or children.
4. Ordinarily, a Will is either typed (and signed before witnesses), or made in holographic fashion, in which it is entirely written in the handwriting of the testator. Here, the Message was sent when the Deceased was too weak to write or speak but could use an iPad with a stylus;
5. Shortly after sending the Message, the Deceased was intubated and became unconscious. She died on May 21, 2023, shortly after sending the Message;
6. Rheanne searched the Deceased’s home and did not discover any other testamentary documents or any previous Last Will and Testament;
7. The Deceased was never married and had no children. She had three siblings: Wayne, Brenda, and Carol Haines, who was the mother of Rheanne and Ryan, and who died on February 10, 2024.

Issue:

The issue was whether the Message should be declared the Deceased’s Last Will and Testament, despite it not being executed in complete compliance with the formal requirements of The Wills Act, 1996.

Ruling:

What is s. 37 of The Wills Act, 1996:

37 is a provision which allows the Court to “cure” a technical issue relating to a testamentary document. The provision reads below:

Substantial compliance

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. 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.

Prior case law makes clear that 37should be broadly interpreted to enable courts to validate a testamentary document even where there is imperfect compliance with the formal requirements under The Wills Act, 1996.

The test to trigger the operation of s. 37 involved the below two considerations:

1. The first factor is whether the document is testamentary in nature. In other words, does the document disclose the person’s testamentary intention, as to how they wish to dispose of their property upon death;
2. The second factor is whether the document represents a deceased’s final wishes. Put another way, is the document embodying a fixed and final intention, and not a mere draft embodying a temporary or inconclusive expression of their intention.

Ruling in Haines v Kuffner Estate:

The Court noted that there was no opposition to the application before the court. All parties agreed that the Message represented the Deceased’s testamentary intention.

The Court in Haines held that the Message was deemed to be the Last Will and Testament of the deceased, Kim Kuffner, pursuant to s. 37 of The Wills Act, 1996. As a result, the applicant was allowed to apply for letters probate, using the Message as a testamentary document.

The Court found that the Message sent by the Deceased to her siblings was testamentary in nature and represented her deliberate and final intentions regarding the disposition of her estate.

The Court relied on the below grounds:

1. The Message began with “My holographic will;”
2. It named an executor;
3. It named a Pet guardian;
4. It provided specific instructions for the distribution of her assets; and
5. It concluded with the date and her name.

Separately, the Court also noted that there was no dispute that the messages received by Brenda and Wayne, and appended to their affidavits, were sent by the Deceased from the Deceased’s device.

Further, there was no evidence that the Deceased was confused or otherwise suffering from a decline in her cognitive ability at the time she sent the Message to Brenda and Wayne setting out her last wishes. In fact, her messages revealed clarity of thought and an awareness that her death was imminent:

34 There is nothing unclear in the message about Kim’s testamentary intentions. Although she could no longer write, and thus the formal requirements of the Act respecting a holographic will were not met, I conclude that the message is testamentary in nature and that it represents Kim’s deliberate and final intentions as to the disposition of her estate.

The Court recognized that s. 37 should be broadly interpreted to validate a will even without compliance with formal requirements.

The Court also held that the applicant was entitled to solicitor-client costs of the application payable by the estate of the Deceased. It is suggested that such was a proper order, in that any legal fees incurred in this application, would benefit the entire Estate (by obtaining certainty on how to distribute the Estate).

Conclusion:

Haines is a reminder that a Court should generally be focused on substance, over technical form, when it comes to validating a testamentary document.

Here, the Message did not meet the formal or technical requirements of a valid will. However, the Court was satisfied that the Message embodied the testator’s true intentions behind the document, even if the form was faulty.

Haines also recognized that in this day and age, technology is a vital method of communication for many persons. As such, a broad interpretation of s. 37 that recognizes this modern reality, is crucial:

[36]           The broad interpretation of  37of the Actis responsive to the modern reality that for some people, their only means of communication is through electronic devices. Here, it was the only means available to Kim who was near death, too weak to write or speak. In this case, an inflexible interpretation and application of s. 37 would have denied Kim the agency to direct how her estate was to be disposed of.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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.