My previous blog post dealt with the subject of substantial compliance provisions in effect in the legislation of a number of provinces, and soon to be introduced into British Columbia. In determining whether a document that does not meet the formal requirements of a Will can be admitted to probate, the key question is whether or not the document expresses the testamentary intentions of the deceased.
Testamentary intent, or “animus testandi”, is a key ingredient in any testamentary document. It was described by the Supreme Court of Canada in Bennett v. Toronto General Trusts Corporation.as a “deliberate or fixed and final expression of intention as to the disposal of property upon death”.
Where a document is in the form of a witnessed formal Will, there is rarely any doubt that the document was intended to be just that. In the context of holograph Wills, the question of whether or not a handwritten document was made with animus testandi can be much more difficult to determine. Is the document intended to be a holograph Will, or is it intended as a handwritten rough sketch of a possible future Will that the testator later decided not to make? Does a handwritten letter to a lawyer instructing him or her to draft a Will and setting out the scheme of distribution show animus testandi? Does it matter if the testator subsequently died before a formal Will could be signed? What if the document is titled “Informal Will”?
In Bennett, above, Mary Winnifred Gray had prepared a formal Will in 1949. In 1952, Mrs. Gray indicated to her lawyer that she was dissatisfied with it, and that she wanted to make a new Will and that she would write to him about the particulars of what she wanted in her new Will. About a month later, Mrs. Gray wrote to her lawyer in Winnipeg on the letterhead of the Kenricia Hotel in Kenora, Ontario. The letter begins:
“Dear Mr. Dysart
When I was in your offis (sic) about a month ago I Promised (sic) to let you know how I would like my will to be made out. I have no Ida (sic) at all about such matters so Ill (sic) leave all that to you, but I do know its (sic) Important (sic) to have such matters settled before its (sic) to (sic) late. I will try to outline the way I would like to leave the little I have.”
She then lists a series of bequests and who they should go to. She met with her lawyer several more times, and died a few years later in 1956, never having formally executed another will.
Does this document show animus testandi? Unsurprisingly, these determinations are very difficult for the courts to make. By the time the question of testamentary intent arises, the key witness, often the only person who truly knew the answer, is dead. While there are some principles that apply broadly to issues of testamentary intention, the result in any case usually turns on the specific facts and circumstances.
In Bennett, the Supreme Court ultimately held that the letter was not a holograph Will on the basis that in subsequent meetings with her lawyer, she acknowledged the 1949 Will and that there were still details to be finalized for a new will, and also based on the provisional nature of the wording of the letter. Unfortunately, we will never know for sure what Mrs. Gray actually intended.