In Arena Estate (Re), 2020 ABQB 206, the Court of Queen's Bench of Alberta considered whether a collection of letters, written by a woman with Alzheimer's disease, constituted a valid will.
Maria Concetta Arena ("Maria") was born in Italy in 1927 and moved to Calgary in 1957. Maria made a will in 1991 leaving everything to her husband Michelangelo, and if he predeceased her, splitting her estate equally between her eight children. Michelangelo died in 2010.
Maria was diagnosed with Alzheimer's in 2016. Her daughter Rosetta testified that Maria was becoming confused, lost her ability to cook (and began storing food in the dishwasher), and was unable to recognize close friends and family. Several of Maria's other children did not think her condition was that bad.
Maria died in 2018. Her daughter Vicki, as personal representative of the estate, applied in August 2018 to probate the 1991 will. Shortly after this, Maria's son Sandy found five letters in his mother's China cabinet.
The letters were written in Maria's handwriting. They were undated. They did not contain a signature, but stated that they had been written "by Maria Concetta".
The letters complained that most of her children had neglected her, and left the house to Sandy. Sandy also produced two undated audio recordings of him speaking with Maria, in which she promised him the house and began making plans for lawyers to handle the paperwork.
Sandy applied to have the first letter recognized as Maria's more recent, valid will.
Does the first letter constitute a valid will?
Formal Validity and Testamentary Intention
Holograph wills are valid under s. 16 of Alberta's Wills and Succession Act, S. A. 2010, c. W-12.2 as long as they are handwritten by the testator and signed.
While Maria's letters did not have a signature per se, Poelman J. found that the first one was validly signed because Maria wrote that they were her "final words" and expressly mentioned her name and that it had been written by her own hand.
To be a valid will, the first letter must also have been intended by Maria to be a testamentary document. Whether this was the case can be inferred from the contents of the document and extrinsic evidence (see Bennett v Gray,  SCR 392).
Poelman J. found that the first letter met the test for testamentary intention. Maria referenced being "no longer here" and clearly noted that Sandy would get the house. The additional letters simply corroborate the will.
Some contradictions in the fourth letter don't preclude a testamentary intention, e.g. in subsequent letters when Maria mentions that Sandy could buy the house.
To have testamentary capacity, the testator must have a sufficiently clear idea of what their property is, who they're giving it to, and the provisions they're making (see Banks v. Goodfellow (1870), LR 5 QB 549). Memory problems do not preclude the possibility of having capacity (Nolan v. Kirby Estate,  SJ No 737). What matters is that someone had capacity at the time the will was made.
Poelman J. found that the letters were prepared under suspicious circumstances, since they were unddated, contained a few contradictions, and Maria was suffering from Alzheimer's. The onus shifts to Sandy to show that Maria made the will with a sound mind.
Poelman J. found that the Sandy satisfied this burden. While Maria's condition was deteriorating, she was able to interact with family and conduct cash banking at a teller's desk until fairly late in her life. The handwritten will shows that Maria was aware of the house, i.e. her main asset.
Maria's handwritten letter constituted a valid will. Sandy gets the house.
The Bottom Line
This is a very interesting decision. An undated, handwritten letter by a woman found to be suffering from dementia can be a valid will.