The Importance of Signing

By Andrea MacLean, Student-at-Law

Alberta’s Wills and Succession Act, SA 2010, c W-12.2 (“WSA”) gives courts the power to order that a will is valid, even where it does not comply with formal requirements required by the Act. But how far can a court go?

The Alberta Court of Queen’s Bench found, on December 6, 2017, that power will not allow a court to add a signature to an unsigned will where the testator had not had the opportunity to review the will and had not been given the chance to sign it.

Facts

In the decision of Edmunds Estate, 2017 ABQB 754, a paralegal prepared a will according to the instructions of the testator, Ms. Edmunds. However, Ms. Edmunds never had the opportunity to review the final version of the unsigned will; she was hospitalized and then passed away unexpectedly before she had a chance to execute it. The beneficiary of the unsigned will asked the Court to validate it despite the absence of Ms. Edmunds’ signature.

Law

Section 39 of the WSA allows the Court to add or subtract from a will to make it accord with a testator’s evidenced intentions. However, in order to do so, the Court must be satisfied, “on clear and convincing evidence”, that the will does not reflect the testator’s intentions because of an accidental slip or omission or if the person preparing the will failed to give effect to the testator’s instructions.

When it comes to adding a signature, the Court is only permitted to add the testator’s signature if the Court is satisfied on clear and convincing evidence that the testator:

(a)  intended to sign the document but omitted to do so by pure mistake or inadvertence, and 
(b)  intended to give effect to the writing in the document as the testator’s will.

Analysis

In order for a court to rectify the will, there must first be an accidental omission, or a situation where the person who prepared the will misunderstood, or failed to give effect to, the testator’s instructions.

The death of a testator, as in Edmunds Estate, is not an accidental omission. The Court in that case found, ['Ms. Edmunds'] death cannot be responsibly characterized as an ‘accident’ that resulted in the omission of her signature on the unsigned will.” The Court did find, however, that if she attended a meeting to execute the will but failed to do so, there may have been a basis for a different conclusion.

The Court also found that an unsigned will does not represent a failure on the part of  the person preparing the will to give effect to a testator’s instructions. The instructions, the Court found, were never given by Ms. Edmunds as the execution meeting never occurred and therefore this section did not apply.

The Court also determined that a signature can only be added if there was clear and convincing evidence it was omitted by “pure mistake or inadvertence.” The Court relied on other cases which showed that a testator dying does not satisfy the element of omission by “pure mistake or inadvertence.” The Court found a pure mistake implies that the testator thinks she is doing one thing but, in fact, does something else (ex: executing a power of attorney and mistaking it for a will). Inadvertence arises from accidental oversight. Neither were present in this case.

In Edmunds Estate, there was no clear and convincing evidence of intention to sign the document and to give effect to the writing in the document as the testator’s will. Though, if Ms. Edmunds had attended upon execution and attempted to sign the will, the Court indicated it may have arrived at a different conclusion.

Conclusion

It is difficult to imagine a scenario in which a Court will ever validate an unsigned will where the testator had not had the opportunity to review and execute it. It is, therefore, critically important for an individual to follow through with completion of the will to ensure that his or her intentions will be carried out.

Where a testator dies before reviewing and signing his or her will, it will be challenging to show clear and convincing evidence that he or she intended to sign the unsigned will. The Court recognized that wills are frequently revised, sometimes dramatically, at the very meeting convened to deal with execution. Arguing that a document never reviewed by the testator perfectly reflected his or her wishes is likely going to be unsuccessful.

Further, the death of a testator does not constitute evidence that the failure to sign arose through pure mistake or inadvertence. Death, even accidental death, does not meet the definition of “pure mistake” or “accidental oversight.”

Gifting of Irrevocable Right of Survivorship

By Justine Bell, Student-at-Law

Recently, Alberta’s Court of Queen’s Bench held an inter vivos gift of a joint interest in real property may be irrevocable where a party intended to gift an irrevocable right of survivorship.

In Pohl v Midtal, 2017 ABQB 711, a mother and father transferred their interest in a quarter-section of farmland to themselves and their daughter as joint tenants. The parents had intended to live on (and farm) the quarter-section until they were unable to do so and, thereafter, for their daughter to assume possession of the quarter-section. Several years post-transfer, the father’s relationship with his daughter had deteriorated. The father, on his own behalf and as the mother’s attorney, registered a transfer thereby severing the parties’ joint tenancy and rendering the daughter a tenant in common. This transfer worked to “reduce” the daughter’s joint interest in the quarter-section to a mere one-third undivided, common interest. The effect of this “reduction” was to deprive the daughter of a right of survivorship (i.e., an entitlement to the whole quarter-section upon the death of her parents). The daughter, accordingly, brought an action against her (deceased) parents as means of recovering her joint interest in the quarter-section.

Briefly, the Court of Queen’s bench held a party gifting a joint interest is presumed to retain the ability to sever same. The Court, however, held this presumption may be rebutted with evidence indicating a gifting party intended otherwise:

There is a presumption that the right of survivorship is given with the joint tenancy in a “normal” way, preserving the ability of the parent to sever. But that presumption can be rebutted by evidence that the intention of the transferor was to give an irrevocable right of survivorship which would prevent the transferor from applying to sever the joint tenancy in the future (at para 52).

Here, the Court held this presumption of severability had been rebutted and, as such, the daughter had been gifted an irrevocable right of survivorship. That is, evidence of the parents’ intentions (i.e., that their daughter would take exclusive benefit of the quarter-section upon their death) allowed for an inference they had relinquished their right of severance upon gifting her a joint interest in the quarter-section.

Accordingly, one ought to take caution when gifting a joint interest. While the law assumes a gifting party retains his/her right to sever a joint tenancy, care should be taken to document an irrevocable right of survivorship has not been gifted. Conversely, a gift of a joint interest in property with a right of survivorship may be confirmed in a will as a means of ensuring the intention of such a gift is understood by all parties involved.