While our office remains open during the
escalating global coronavirus (COVID-19) situation in Alberta, we have taken
steps to minimize the potential impact of the virus in accordance with our
firm’s business continuity plan and the recommendations of the provincial
health authorities. We have accordingly
limited non-essential in-person client meetings and have moved them online.
Will signings are one type of meeting that cannot be handled entirely digitally, as in Alberta, subject to some narrow exceptions, a valid will must have an original signature. In case this health scare has you thinking about your estate plan while you are in self-isolation, the recent case of Dalla Lana Estate (Re), 2020 ABQB 135 illustrates one way that you can make your testamentary intentions known and recognized in Alberta.
The deceased in this case had made a formal
will in 1997. He died in March 2018. Four days before his death, on two sticky
notes, he made what he described as “changes to my will.” The sticky notes were entirely in the
deceased’s handwriting and were witnessed by one of his sons, who was also a
beneficiary. The changes on the sticky
notes were significant and effectively re-wrote the deceased’s 1997 will.
This case is somewhat unusual because the
judge issued a written decision from a desk application for a Grant of Probate. There was no hearing in Court. However this
is a good reminder that a desk application is still an application to the
Court, which requires appropriate evidence and legal advocacy.
Justice Lema conducted a thorough overview of
the relevant legislation and concluded that the sticky notes met the
requirements for a “holograph will”: a will, which is entirely in the
testator’s handwriting and signed by the testator. The signature by the one witness was
superfluous and did not affect the validity of the sticky notes as a holograph
The judge considered other factors to
conclude that the sticky notes represented the deceased’s fixed and final
intentions about the disposition of his property after death:
- there were no questions about
his mental capacity;
- the sticky notes were signed,
indicating the deceased’s seriousness about the notes;
- the notes were referred to his
- the notes were specific about
his property and nothing was left undistributed;
- the notes contained the typical
building blocks for a will: appointment of executor, payment of debts, specific
gifts and a gift of the residue;
- nothing in the notes reflected
a tentativeness or uncertainty about the deceased’s intentions or that the
notes were meant to be a stepping stone to a more formal document.
In the end, the sticky notes displaced the
formal 1997 will and were admitted to probate.
This case is an illustration of how far
judges will sometimes go to give effect to an individual’s intentions in the
right circumstances. However, by way of
caution, there is always risk that anything less than a properly executed Will
may not be accepted by the Court if the evidence does not allow the judge to
conclude that the non-compliant document was intended to reflect a person’s
If you have any questions about this decision or preparation of wills generally, feel free to contact me. Stay safe and as always, thank you for reading.