Testamentary Instruments in Canada

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Compiled by Eric B. Appleby:

Wills

The well known phrase “Last Will and Testament” refers to a testamentary disposition. The word “will” is English and the word “testament” is Latin. Today if the word “will” is used, the word “testament” is superfluous. See The Language of the Law (1963) by David Mellinkoff at page 331. What is a testamentary disposition? In short it is a will. And a will is an instrument by which a person makes a disposition of property to take effect at the time of death (see Black’s Law Dictionary, 6th ed., page 1598).

In Miskew Estate v. Hughes (1986), 71 A.R. 316, the Alberta Court of Appeal stated at para. 11: A document will be testamentary and admissible to Probate if it meets three tests: (a) does it satisfy the legal formalities? (b) does it contain a disposition intended to take effect upon death? and (c) did the testamentary intention continue to the time of death?

Note that testamentary intention is required for a valid will. (See Preparation and Execution in this legal Encyclopedia.

Codicils

A codicil is a supplement to a will and may add or revoke provisions in the will. A codicil must be executed with the formalities required of the original will – see Legal Formalities below. A codicil is part of the will and the will and the codicils make but one testament.

Conditional wills

A conditional will is one which depends on the occurrence of some uncertain event. If the testator intends to dispose of his property in case the event happens, the gift is conditional. In the case of Schullman, Re (1984), 32 Sask.R. 74 (Q.B.) the headnote stated in part: In 1975 the testator executed a will that stated “. . . I am getting heart trouble . . . if I die by morning my will is . . .”. The testator did not die until 1983 when he was killed in an accident. The court held that the will was not conditional and admitted it to Probate.

Incorporation by reference

It is possible for a will to refer to another document, and that the document referred to, will become a part of the will. Such a reference is called incorporation by reference. The elements of incorporation by reference are: In addition to the requirement that the document intended to be incorporated must be an existing document and not one that is to come into existence at a future date (which may be called the first condition for the operation of the doctrine), there are two other conditions required. The second of these three conditions is that the document must be referred to in the will; the third condition is that the reference in the will must be sufficient to identify the document. See Tucker Estate, Re (1993), 126 N.S.R.(2d) 201; 352 A.P.R. 201 (Probate Ct.), para. 14.

Legal formalities, general

Generally, a will to be valid must be signed by the testator in the presence of two attesting witnesses. See Preparation and Execution in this legal Encyclopedia.

Wills by military

Special provisions are made by statute to accommodate persons who make a will while in military service. Sometimes the validity of an armed forces member’s will depends on whether the person was on “actual military service”. See Wheatley Estate, Re (1984), 95 N.S.R.(2d) 66; 251 A.P.R. 66 (Probate Ct.) which includes a history of these special legislative provisions at para. 4.

Holograph wills

A holograph will is written entirely by the testator in his own hand and not witnessed. A holograph will is governed by provincial legislation, for example, s. 6 of the Wills Act, R.S.N.B. 1973, c. W-9 states: A testator may make a valid will wholly by his own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. When a testator combines his handwriting with a printed will form that is not witnessed, the courts have had to rule on the validity of the alleged holograph will. See Carr Estate, Re (1990), 112 N.B.R.(2d) 151; 281 A.P.R. 151 (Probate Ct.).

Successive Wills

An otherwise valid will may be rendered invalid by the making of a second will that is inconsistent with the first will. See Kavanagh’s Will, Re (1992), 98 Nfld. & P.E.I.R. 165; 311 A.P.R. 165 (Nfld. S.C.).

Mutual Wills

Mutual wills are the separate wills of two persons which are reciprocal in their provisions. The effect of such wills is stated in O’Connell Estate, Re (1980), 44 N.S.R.(2d) 181; 83 A.P.R. 181 (Probate Ct.), and at para. 19 the court stated: I shall dispose first of all with the legal effect of the mutual wills. It is clear beyond question that the mere making of these mutual wills does not effect any permanent change in the rights and obligations of the makers for by the English common law a will, by its very nature, is always revocable and, during the joint lives of the testators, each is free to alter his or her will. It is only upon the death of one of the makers who dies without having altered his or her mutual will that the rights of the survivor to alter his or her mutual will may be compromised (cf. e.g., Gray v. Perpetual Trustee Co. Ltd., [1928] A.C. 391; [1928] All E.R. Rep. 758).

Power to designate a beneficiary outside a will

There may be circumstances where a testator may designate a beneficiary outside his/her will. This power is usually based on a statute. In McGrath v. Nadeau (1994), 153 N.B.R.(2d) 141; 392 A.P.R. 141 (T.D.) this application raised the issue of whether a beneficiary card signed by a deceased under the provisions of the Credit Unions Act took precedence over the provisions of her will. The New Brunswick Court of Queen’s Bench, Trial Division, held that the beneficiary card took precedence over the provisions of the will.

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This entry was last updated: February 13, 2017