Writing a Will Over Drinks
The parties in Meunier Estate, 2022 ABQB 83, disputed whether the deceased (Robert) had a will before he died.
Several months before the Robert died, the Robert was having some beers with two friends when he mentioned he did not have a will. Robert’s friends, one of whom was a Commissioner for Oaths, convinced Robert he needed to make a will because if he did not have a will when he died “the government would take all of his assets including his house”. Upon hearing this, Robert decided to make to make a will right then and there. Robert dictated his wishes and one the friends handwrote a two-page document which reflected Robert’s wishes. Robert reviewed the document, and only signed the first page, his stamped and signed both pages as a witness and Commissioner. The other friend merely watched Robert sign the first page. The document indicated what Robert’s wanted to do with his house, certain personal items, and his remains upon his death.
The Wills and Succession Act, SA 2010, c W-12.2 (the “WSA”) outline what is required for a will to be considered valid:
- A valid will must be in writing and contain the signature of the testator that makes it apparent the testator intended by signing to make the document the testator’s will (WSA s.14).
- If the will is a formal will, the testator’s signing must be witnessed by two eligible witnesses who then also sign the document in the presence of the testator (WSA s. 15).
- If the will is a holograph will, it must be entirely in the testator’s handwriting and be signed by the testator; no other formality is required (WSA s.16).
Where a document does not meet the WSA requirements to be a formal will or a holographic will, a Court may validate the document under section 37 of the WSA if the Court is satisfied on “clear and convincing evidence” the document contains the testator’s testamentary intentions and the testator intended it the document to be his or her will.
In this case, the Court found the document contained some typical elements of a will but not others;
- the document was not in Robert’s handwriting;
- Robert had only signed the first page; and
- the document was only signed by one witness.
The Court determined the fact Robert’s friend commissioned the document indicated Robert understood the finality and formality of the document and both understood at the time the document was made, and Robert was making a will.
Ultimately, the Court validated the first page and found that page to be Robert’s will. The Court determined that because the second page didn’t contain Robert’s signature, a date, a page number, or even Robert’s name, it was confusing, and there was a risk it was not made at the same time as the first page – the second page was not found to be a valid part of Robert’s Will.