Sign Your Wills: Traps for the Unsigned Will

McKercher Service Area Wills, Estates and Income Tax LawSection 37 of The Wills Act, 1996 allows a will which embodies the deceased’s testamentary intentions to be fully effective even if it does not comply with the Act’s formal requirements. Does this mean that a will unsigned by the deceased can be probated? The latest Saskatchewan decision to touch on this issue, Kube v. Kube, 2015 SKCA 49, leaves the question open. Upholding the lower court (Re Kube Estate, 2014 SKQB 291), the Court of Appeal refused to probate a document which purported to give the testator’s property to the applicants. The document was found in the deceased’s closet after his death, dated one year before his death, unsigned, partially photocopied, partially hand-written, whited-out in some areas, and cut and taped together. In the eighteen months leading up to his death, the deceased had created a will, revoked that will, granted power of attorney, and revoked that power of attorney, each time at the prompting or with the help of a different niece or nephew (his closest surviving relatives). Clearly, whether the document embodied the deceased’s testamentary intentions was questionable.

However, the Court of Appeal briefly mentioned, but neither expressly agreed nor disagreed with, the lower court’s observation that a document does not need to comply with any formalities before it can be considered under s. 37. The lower court had cited Re Bunn Estate, [1992] 4 WWR 240 (SKCA). In this case, the Court of Appeal applied a substantially similar provision in The Wills Act, 1978 to probate an unsigned holograph will and observed that the provision’s wording

indicates that the court can intervene when less than 100% of the formalities have been met but does not say that the section is operative only upon some minimum level of compliance. The latter interpretation would produce an artificial distinction of an unnecessarily technical nature. (Bunn at para 16)

Despite Bunn, some Saskatchewan decisions have subsequently held that for s. 37 to apply the document must at the very least be signed by the deceased. See Re Nielsen Estate, 2012 SKBQ 15;  Buliziuk v. Pischnot Estate, 2004 SKQB 12; and Re Mate Estate, [1999] SJ No 341 (QL) (QB), aff’d 2000 SKCA 63. None of these decisions mention Bunn.

Whether an unsigned will can be probated remains uncertain. But avoiding this problem is, in most circumstances, quite straightforward: the testator should sign his or her will without delay. Or, if the testator intentionally decides not to sign the will, the lawyer should be notified. This would help prevent needless litigation after the testator’s passing.

About the author:

Andy is a student at law in the Saskatoon office.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made us a top ranked firm by Canadian Lawyer magazine (2011, 2013). Expertise, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.