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Court of Appeal Upholds Rejection of Unexecuted Planning Document

In Kube v Kube, the Saskatchewan Court of Appeal considered the requirements for when an unexecuted document can be considered a will.  This issue arose in the context of an application to admit such a document to probate.

This case involved a deceased, who had previously executed a formal will, but had revoked it prior to his death.  In this will, he had designated his niece and nephew as the sole recipients of his estate.  Later, he made attempts to write a new will, expressing a desire to bequeath equal shares to his five nieces and nephews, rather than just the two beneficiaries noted in the earlier will.  While this second will was never drafted, The Intestate Succession Act resulted in the deceased’s estate being divided equally among his five nieces and nephews, because he died without a will.

The niece and nephew designated in the first will found a document months after the deceased died, which was dated before the date of his death.  This document was described by the Court as comprising “two pages of photocopied excerpts from other documents in [the deceased’s] handwriting cut and taped together with portions whited out and replaced with the date “Aug 28” written in blue ink.”  It bore the deceased’s photocopied signature and the title “will”.  This document would give the estate to the original niece and nephew alone, so they brought an application to the Court of Queen’s Bench for Saskatchewan to see whether it constituted a will.

The Chambers judge dismissed the application, stating that he was unsure as to whether this document expressed the deceased’s testamentary intentions.  This was based on a lack of substantial evidence establishing that this document had been intended to express the deceased’s intentions, whether it intended to revive an earlier will or even whether it was created by the deceased.  The judge determined that the document was neither a will nor a revival of a previous will.  Following this, the niece and nephew appealed.

The Court of Appeal first addressed what the standard of proof should be.  Like all civil cases, the standard is proof for this application was on a balance of probabilities.  It was decided that, while the judge mentioned certainty, that this was merely an expression of concern about the evidence and was not the application of a new standard.  Accordingly, the judge was not mistaken in his evaluation of the necessary proof required to establish the document as a will.  The judge’s concerns about the questions surrounding the creation of the document should not be confused with his decision regarding whether the document represented an attempt to make a will by the deceased.  The sole issue, the Court stated, is whether a document is testamentary.  This must be approached with regards to two questions.  The first of these is whether the document is testamentary in nature (is it like a will) and the second is whether the document represents a deceased’s final wishes (is there a deliberate or fixed and final expression of intention as to disposal of property).  These must be evidenced and proven on a balance of probabilities. 

Within the case, the niece and nephew had argued that the earlier will was a holograph will (a testamentary document that does not meet all of the usual formal steps, but was still valid) and that the document should be seen as an expression of testamentary intention.  However, the Court of Appeal dismissed this ground of appeal, confirming what the starting point for the analysis begins with the document itself.  Accordingly, it is irrelevant how the earlier will was characterized because the document in question could not be shown to be a will (holographic or otherwise) based on the absence of evidence around its purpose, creation and “whether it represents the deceased’s final wishes”.

The Court specifically states that this decision does not mean that a planning document can never be a testamentary document, but that here it was determined that the document did not express the deceased’s testamentary intentions - despite it saying “will” and being similar to a previous will. 

Kube v Kube, 2015 SKCA 49