In MacKinnon v. MacKinnon Estate, 2021 NSSC 272, the Supreme Court of Nova Scotia considered whether unsigned and undated written notes in the deceased's notepad embodied a fixed and final testamentary intent that could be admitted to probate.
Neila MacKinnon ("Neila") died unexpectedly on June 27, 2019. She had scheduled an appointment to see her lawyer on that same day, but died before she could attend the meeting.
Neila was unmarried and had no children. She had three siblings: Rick MacKinnon, Lavina Musgrave, and Zita Graham. She was close with her siblings and many nieces and nephews.
Neila executed a will on November 12, 2014 (the "2014 Will"). The 2014 Will appointed Rick as executor and divided the estate equally between her siblings. If any sibling pre-deceased Neila, that sibling's share would go to the surviving siblings. If all three siblings pre-deceased Neila, the estate would go to her nieces and nephews.
At the time of Neila's death, Lavina was her only surviving sibling. Shortly after Neila's death, her niece Ardell MacKinnon ("Ardell") found a notepad in Neila's living room containing two pages of handwritten notes. The notes named two nieces, Ardell and Arleen Musgrave ("Arleen", Lavina's daughter) as executrix, and specified how Neila's property would be divided between her sister Lavina and her various nieces and nephews. The notes were unsigned, undated, and unwitnessed.
Ardell applied to court to have the handwritten note deemed a valid will. There was evidence that Neila had been planning to update her will following the deaths of two of her three siblings, to provide for her nieces and nephews.
Arleen opposed the application, taking the position that the 2014 Will should be admitted to probate.
Can the handwritten notes be admitted to probate?
Section 6 of Nova Scotia's Wills Act, RSNS 1989, c. 505 requires a will to be signed and witnessed. It's clear that the handwritten notes do not meet these requirements.
But s. 8A of the Act allows a court to order that "a writing" embodying the testamentary intentions of the deceased "is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act". The onus is on the applicant to show, on a balance of probabilities, that the writing in question meets these requirements.
The case law explains when a court will deem a non-compliant writing to be a valid will:
the crucial question to be answered is whether the document expresses the “animus testandi” of the deceased – a deliberate or fixed and final expression of the intention as to the disposal of his/her property on death
Komonen v. Fong, 2011 NSSC 315
In the case of Peters Estate (Re), 2015 NSSC 292, the court listed several factors to consider in this analysis, including:
- How formal was the language?
- Was the document signed? Dated? Sealed?
- How certain are the bequests? Are reasons for the bequests given?
- How permanent was the document? Was it written in pen or pencil?
- Was there an expectation that the document would be read?
The trial judge, Justice Cogan, was convinced that the notes were written by Neila. They were written in pen, in a notepad that was sure to be found after her death. Moreover, the notes name the executrix and listed specific bequests. They are consistent with statements Neila had made about updating her will. The fact that the notes are not signed is understandable, since Neila had planned to visit her lawyer to have everything formalized.
Taken together, Justice Cogan was satisfied that Neila's handwritten notes were a writing that embodied her fixed and final testamentary intent. The notes revoked the 2014 Will and can be admitted to probate.