While our office remains open during the escalating global coronavirus (COVID-19) situation in Alberta, we have taken steps to minimize the potential impact of the virus in accordance with our firm’s business continuity plan and the recommendations of the provincial health authorities. We have accordingly limited non-essential in-person client meetings and have moved them online.

Will signings are one type of meeting that cannot be handled entirely digitally, as in Alberta, subject to some narrow exceptions, a valid will must have an original signature. In case this health scare has you thinking about your estate plan while you are in self-isolation, the recent case of Dalla Lana Estate (Re), 2020 ABQB 135 illustrates one way that you can make your testamentary intentions known and recognized in Alberta.

Background

The deceased in this case had made a formal will in 1997. He died in March 2018. Four days before his death, on two sticky notes, he made what he described as “changes to my will.” The sticky notes were entirely in the deceased’s handwriting and were witnessed by one of his sons, who was also a beneficiary. The changes on the sticky notes were significant and effectively re-wrote the deceased’s 1997 will.

Judge’s decision

This case is somewhat unusual because the judge issued a written decision from a desk application for a Grant of Probate. There was no hearing in Court. However this is a good reminder that a desk application is still an application to the Court, which requires appropriate evidence and legal advocacy.

Justice Lema conducted a thorough overview of the relevant legislation and concluded that the sticky notes met the requirements for a “holograph will”: a will, which is entirely in the testator’s handwriting and signed by the testator. The signature by the one witness was superfluous and did not affect the validity of the sticky notes as a holograph document.

The judge considered other factors to conclude that the sticky notes represented the deceased’s fixed and final intentions about the disposition of his property after death:

• there were no questions about his mental capacity;

• the sticky notes were signed, indicating the deceased’s seriousness about the notes;

• the notes were referred to his previous will;

• the notes were specific about his property and nothing was left undistributed;

• the notes contained the typical building blocks for a will: appointment of executor, payment of debts, specific gifts and a gift of the residue;

• nothing in the notes reflected a tentativeness or uncertainty about the deceased’s intentions or that the notes were meant to be a stepping stone to a more formal document.

In the end, the sticky notes displaced the formal 1997 will and were admitted to probate.

This case is an illustration of how far judges will sometimes go to give effect to an individual’s intentions in the right circumstances.  However, by way of caution, there is always risk that anything less than a properly executed Will may not be accepted by the Court if the evidence does not allow the judge to conclude that the non-compliant document was intended to reflect a person’s final intentions.

If you have any questions about this decision or preparation of wills generally, feel free to contact me. Stay safe and as always, thank you for reading.