In McCarthy Estate (Re), 2021 ABCA 403, the Court of Appeal of Alberta considered whether a chambers judge erred by refusing to use its dispensing power to order that an improperly executed will is still valid. The decision is a good example of the kinds of deficiencies courts must consider correcting in substantial compliance jurisdictions.
Pamela died unexpectedly on September 27, 2019. In her home office, a printed five-page document was found entitled "This Is the Last Will and Testament of me, Pamela Beverly McCarthy", dated August 19, 2019.
The first four pages of the document take the form of a will. The last document is a "Memorandum of Personal Property" and details what should happen with the residue of her estate, some specific gifts, etc. Each page of the document has Pamela's initials and page four contains her signature.
The document was typed, i.e. not a holographic will, and names executors, identifies relevant property and assets, and specifies how her remains should be handled. A soft copy was found on the deceased's personal computer.
There was no dispute over the authenticity of the initials or signature. But critically, the document was not witnessed.
Alberta's Wills and Succession Act states that to be valid, a will must be in writing and signed by the testator in the presence of two witnesses (ss. 14-15). The testator's signature should be on the last page of the will. Anything after the signature is presumed to not be part of the will (s. 19).
Following recommendations from the Alberta Law Reform Institute, the Wills and Succession Act was amended to give courts the power to order that an imperfectly executed will is valid "if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator" (s. 37).
The policy rationale for this dispensing power is to ensure that clear testamentary intentions are not obstructed by legal formalities. Courts must balance the seriousness of the deficiency against the sufficiency of the evidence that the will represented the intentions of the testator.
The chambers judge determined that Pamela's unwitnessed will could not be saved by the court's dispensing power. He questioned if this will was merely a draft or work in progress and indicated that there was insufficient evidence regarding the creation of the document.
The Court of Appeal disagreed with this assessment. There was uncontested evidence from Pamela's friends that she had been working on her will in the months prior to her death. Metadata from her computer showed that she had edited, saved, and printed the will. And the title of the document clearly shows that it was meant to be a will.
The Court of Appeal determined that the chambers judged erred. Despite lacking witnesses, the dispensing power should be used in this case to order that Pamela's will is valid. The purpose of witnesses is to ensure the authenticity of the document, but there was clear evidence here that Pamela prepared and executed the will herself.
Moreover, this case is distinguishable from other cases where the dispensing power was denied. Those cases involved written documents that were neither finalized nor signed (see Hood v South Calgary Community Church, 2019 ABCA 34 at para. 31, 83 Alta LR (6th) 44; George v Daily (1997), 1997 CanLII 17825 (MB CA)).
Lastly, the Court of Appeal addressed the question of whether the fifth page of Pamela's will, the "Memorandum of Personal Property", was included as part of the will, given that it came after her signature. Since this page unambiguously references other parts of the same document, was initialed, and was clearly intended to be part of the will, the court found that it should be included.
The dispensing power gives courts in Alberta considerable discretion to save deficiently executed wills. In this case, despite the lack of witnesses and some information coming after the testator's signature, there was clear evidence that the whole document was authentic and intended to be a will, making it an appropriate use of the court's dispensing power.