Witnesses with nothing to gain can turn an imperfect document into a Will

By Donna L. Gee

People 65 and older constitute the fastest growing population category in Alberta,

representing 11.1% of the population. Numbering over 700,000 people at the end of

2021, that number is expected to double over the next 20 years. Consequently,

questions surrounding the capacity to make decisions about end of life issues and the

validity of Last Wills and Testaments may be expected to come before our courts with

increasing frequency.

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.

At issue was whether Robert Meunier (Robert) had died without a Will as a surviving

brother asserted, or whether he had made a Will, just one that was not entirely in

accordance with legal formalities as three of Robert’s nieces asserted. There was also

some controversy as to whether Robert had capacity to make a Will of his own volition

given there was evidence of him being a heavy drinker who may have been under the

influence when he had signed a document that his surviving nieces were now arguing

constituted his Will, flawed in form though that document might be.

Robert’s wife, parents, and a sister had pre-deceased him. He had no children but was

survived by two brothers and two sisters, as well as several nieces, nephews, and other

relatives. One of Robert’s brothers, Roland, was seeking a declaration from the

Surrogate Court that his brother had died intestate and that he should be appointed as

Administrator to divvy up the estate into equal shares among himself and the other

three surviving siblings. However, three adult nieces who were daughters of Robert’s

deceased sister had come forward to oppose Roland’s application, arguing that Robert

had not died intestate but had signed a document that named them as equal

beneficiaries of his house.

The parties agreed the Document in issue was neither a holographic Will (a Will signed

and written in the Testator’s own handwriting) nor that it met all the statutory

requirements of a formal Will. However, in accordance with section 37 of the provincial

Wills and Succession Act, an otherwise imperfect document that purports to be a Will

can be validated by a Court if there is “clear and convincing evidence that the writing

sets out the testamentary intentions of the testator and was intended by the testator to

be his or her will….” The parties further agreed there was no need for a trial to resolve

issues and that matters could be resolved by way of affidavit evidence.

The putative Will originated during the evening of February 14, 2020. Robert was

visiting with friends, a married couple named Donna and Norman Henze. They were

having a chat over a few beers about loved ones they had lost recently when the

conversation turned to the subject of Wills. Donna said that if Robert died without a Will,

the government would seize all his assets including his house and distribute them in

accordance with the law. She said this so infuriated him that he decided to dictate his

Will to her immediately.

Donna wrote out the document in her own handwriting. Robert read it, signed it, and

Donna signed as a witness to his signature in her capacity as a Commissioner of Oaths

for the Province of Alberta. She attempted to formalize the document with her

Commissioner of Oaths stamp. Robert signed the first page, which purported to give his

house to his three nieces (Kim, Carly, and Cammy) and bequeathed a vehicle and other

personal effects to three other people. The second page purported to give a portion of

the remainder of Robert’s estate to a god-daughter, but this page was not signed by

Robert, nor did it contain a date. Donna signed and stamped both pages and retained

possession of the document.

QUESTION: Did Robert create a legally binding Will?

STAY TUNED TOMORROW FOR THE ANSWSER ��