Part 3 - What is the takeaway from the Meunier decision?

By Donna L. GeeDonna's first post

When a judge assesses oral statements and written evidence of a deceased person’s

wishes, even if a document does not conform to all the formalities of a valid Will, the

evidence of witnesses with nothing to gain will be given a lot of weight and can

determine the outcome.

Even an Imperfect Will can be Legally Valid

As Benjamin Franklin once observed, nothing is certain except death and taxes. With

death an inescapable fact, why do so many people pass on without having made a Will?

Surveys show that over half of adult Canadians do not have a Will. If a person dies

without a Will, there are provisions in Alberta’s Wills and Succession Act that will

dispose of the person’s assets, for a hefty fee of course.

On the other hand, the importance that the law regards the making of a Will while a

person is alive and of sound mind can be seen in the provisions of the Wills and

Succession Act that pertain to the formalities of making a Will. For example, in addition

to a person being of sound mind, the Will must be signed in the presence of two

witnesses who are not beneficiaries.

However, what happens when some of the formalities are missing or, if present, not in

complete compliance? Does that mean a document that purports to be a Will is of no

force and effect? Not necessarily. Courts will strive to find even an imperfect Will to be

valid, unless there is compelling evidence of undue influence over the person making

the Will or fraud.

A decision issued by the Court of Queen’s Bench (Edmonton Surrogate) in late January

of 2022 addresses several important matters, including the capacity to make a Will and

whether a Will that failed to meet all the criteria to be a valid Will could nonetheless be

recognized by a Court as a legal instrument capable of settling a dead person’s Estate.

The decision is Meunier Estate, 2022 ABQB 83 (CanLII), <https://canlii.ca/t/jm1g1.

The judge in this case declared a portion of a written document to be a valid Will in spite

of the following:

• The document was handwritten and prepared in the home of a neighbour of the

deceased person rather than a lawyer’s office.

• Evidence weeks after the document had been signed that the deceased said he

had only signed on as a joke.

• Evidence that the deceased and both witnesses had been consuming alcohol

when the deceased dictated his Will to one of the people who would then sign on

as a witness.

• Part of the document was neither signed nor dated. This portion was declared to

be of no validity and ignored; and

• Evidence that the deceased may have intended to make another Will days before

his death when he signed a form Will that his brother had obtained from the

Internet.