Carscallen Blog

Win for Carscallen LLP Wills and Estates Team in Court of Queen’s Bench

Posted by Carscallen LLP on Aug 18, 2020 6:15:00 AM

Written by Jennifer R. Lamb, Paul E. Reid & Aicha Kouyaté

Carscallen LLP lawyers Jennifer R. Lamb and Paul E. Reid successfully represented their client (the “Applicant”) in a recent Probate matter in Calgary in the Court of Queen’s Bench of Alberta[1]. The matter involved a will that was formally executed in 1991 (“1991 Will”) by the Applicant’s late mother (the Testatrix”), as well as a holographic will in the form of an undated letter handwritten in Italian by the Testatrix

The Applicant sought a declaration in Court that the handwritten letter at issue (the Letter”) be admitted to Probate as his mother’s final will despite the 1991 Will, which the Testatrix executed together with her late husband’s execution of a mirroring will at the same time (her husband predeceased her in 2010).

The Letter was written in Calabrian, a dialect of Italian, along with a series of other handwritten letters that were all undated and in the Testatrix’s handwriting. Although the Letter was undated, it began with the statement that the Testatrix wrote it “as a will” and concluded with the words: “Written by the hands of [the Testatrix]. You are all my blood and understand everything.” The Testatrix’s name was written as a handwritten signature.

Both of the mirroring 1991 Wills appointed the same daughter (one of the Applicant’s sisters and a daughter of the Testatrix) as executor and personal representative of the estate (the “Personal Representative”). The Personal Representative sought an Application for a Grant of Probate of the Testatrix’s 1991 Will in Court, and challenged the admissibility of the Letter as the final will of the Testatrix, arguing

  1. that the Letter did not meet the requirements of containing the Testatrix’s signature and
  2. that there were suspicious circumstances surrounding the preparation of the Letter.

On the first issue of the formal validity of the Letter as a holographic will, the Court dismissed the Personal Representative’s argument and found that the Letter was signed by the Testatrix within the meaning of the statute and, and if anything, the Letter indicated more formality than was required by the Wills and Succession Act[2] (the “Act”). The Court found that to suggest otherwise would impose an unreasonably strict interpretation of what it means to sign” a will, and the existence of a short personal phrase after the signature did not affect this, as the Act does not require the signature to be at the very end of the document.[3]

On the issue of suspicious circumstances, the Court found that although the threshold for establishing suspicious circumstances was met,[4] the contents of the Letter met the test for testamentary intention, and showed a clear intention as to the disposal of the Testatrix’s property on her death.[5] The Court also found that the Testatrix had the required testamentary capacity when she wrote and signed the Letter (as a holographic will).[6]

As a result, the Personal Representative’s Application for a Grant of Probate of the 1991 Will was dismissed by the Court and the Letter was admitted to Probate as the valid will of the Testatrix.

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*This update is intended for general information only on the subject matter and is not to be taken as legal advice.

 

 

[1] Arena Estate (Re), 2020 ABQB 206 [Re Estate].

[2] Wills and Succession Act, SA 2010, c W-12.2; Re Estate at para 96-97.

[3] Re Estate at para 97.

[4] Re Estate at para 99.

[5] Re Estate at paras 102-103.

[6] Re Estate at para 116.

Topics: Wills, Trusts, Estates, and Estate Litigation, Wins

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