The recent Saskatchewan King’s Bench decision in Harrison v MacMillan offers an example of a will challenge that failed to raise a genuine issue.

While there is no new point of law offered by Harrison, the decision provides a helpful caution to parties who wish to challenge a will. If parties do not have direct firsthand evidence which raises a genuine issue of incapacity or undue influence, they may find that the Court dismisses their challenge. It also reminds us that eccentricity by an elderly testator is not itself evidence of testamentary incapacity.

Background:

The factual background in Harrison included the below:

1. Walter Senkiw (“Deceased”) died on September 27, 2022.
2. The Deceased had made two wills in the last several years of his life.

1. 2018 Will:The 2018 Will named the Deceased’s sister Francis Harrison (“Francis”) as executor and sole beneficiary;
2. 2022 Will:The June 3, 2022 Will named a friend of the Deceased, Ben MacMillan (“Ben”), as executor. It named Ben’s children as beneficiaries.

3. Letters Probate were granted for the 2022 Will on March 6, 2023.
4. Francis later brought an application for solemn form which sought to challenge the 2022 Will. Francis alleged that Walter lacked capacity or was unduly influenced at the time he made the 2022 Will. Francis provided evidence which made the below allegations:

1. Francis provided evidence suggesting that Walter had engaged in erratic behavior and had a diminished mental state between 2019–2022:

1. Francis states that Walter always loved Moosomin and his home there, but around 2019, she observed Walter’s attitude change, and he became increasingly paranoid. She avers that Walter did not trust anyone in Moosomin, and he believed that people were following him;
2. In 2019, Walter had his cell phone disconnected and would contact Francis by payphone. Francis states this was because he did not want anyone to call him regarding his legal issues;
3. Walter was convinced his neighbours purposely made noise to irritate him;
4. Francis observed that Walter did not grasp the cost of flowers they purchased for Francis’ mother-in-law and that he tried to pay with a handful of loose change;
5. In the summer of 2021, Walter financed the purchase of a trailer and parked it in an RV park outside Winnipeg. Francis would regularly visit him there and learned that there were occasions when Walter travelled from Winnipeg to Moosomin in the middle of the night to check on his house and then return to Winnipeg by the morning. It is unclear when or how often this happened;
6. In late 2021, a helicopter flew by the RV park when Francis visited Walter. She explained that Walter was convinced the Royal Canadian Mounted Police were looking for him;
7. On another occasion in 2021, Walter asked Francis to move to Moosomin and was upset when she declined his offer to leave her job and family in Winnipeg.

2. Francis alleged that there were suspicious circumstances including Walter’s odd conduct, and his poor home conditions. Francis avers to attending Walter’s home shortly after learning of his death in October 2022. When she arrived, she observed that Walter’s front door was sealed, the kitchen window was boarded up, and he had numerous deadbolts on his back door. She observed white towels placed throughout the house on top of the carpet, and the pipes had been removed from a bathroom sink. Walter’s toilet did not flush. Walter had buckets of human waste in the bathroom; and clothes hanging on lamps; and
3. Francis also emphasized her concern that the 2022 Will constituted a sharp departure from his 2018 Will.

5. Ben sought to uphold the 2022 Will. Ben offered evidence that described his relationship with the Deceased as neighborly, and that Walter himself had initiated any decision to change the 2018 Will. Ben denied any improper influence or involvement in Walter’s testamentary decisions.
6. Ben said that Walter complained to him about Francis and other members of his family who had not made an effort to contact Walter in recent years. Ben understood Francis lived in Manitoba and that Walter had recently lost the relationship with Francis.
7. Ben spoke of observing Ben’s wife and Walter speaking almost daily in their yard, while they were neighbors. Ben states that Walter occasionally gifted him work gloves, and once they moved to a different street in Moosomin, Ben and his family would stop by and visit Walter. Ben describes assisting Walter with various tasks around his home. Ben and his family later moved to a farm.
8. Ben spoke of Walter visiting Ben’s farm on his way home from a camping trip in 2022. During that visit, Walter showed Ben and his wife his will, naming Ben as executor and Ben’s children as beneficiaries. Ben states that he and Walter had never spoken about estate planning before this, and this was the first Walter had mentioned anything to Ben about his will. Ben further stated that Walter indicated he did not wish his estate to go to his family and chose to benefit Ben’s children instead.
9. The 2022 Will had been drafted by a lawyer, Lynnette Bock. Ms. Bock provided evidence of her experience in estate planning, indicating that during her career she had completed over 1,000 wills for clients.
10. In her affidavit, Ms. Bock described her routine when meeting with clients on estate matters as including:

1. Ensuring that clients were oriented to time or place and had no difficulty following the conversation;
2. Observing the person’s hygiene and appearance and whether they attend her office independently or with another person;
3. Tailoring her questions to gauge whether the client is under duress and would address any concerns directly with the client.

11. Bock attested to following her usual routine when meeting with Walter on May 20, 2022, and again on June 3, 2022. She offered the below recollections:

1. They met at her Rocanville, Saskatchewan office, and she observed that Walter had driven himself to the appointments. Walter was on time and wore a mask as required due to the COVID-19 pandemic;
2. Bock described Walter as a “bit odd” but had no concerns about Walter’s mental capacity. Ms. Bock states that she has clients whose behaviors were far more concerning than the ones that Walter exhibited;
3. Bock engaged Walter in typical small talk and noted that he was clean and well-groomed for both appointments. She did not observe any behaviours that she would consider a red flag;
4. Bock’s practice was to review every paragraph of a will with every client before they signed it.

12. In short, Ms. Bock provided evidence that Walter had instructed Ms. Bock that he wanted to leave his estate to Ben’s children. Ms. Bock had simply followed such instructions.  Ms. Bock did not meet or speak to Ben until Walter’s death when Ben and his wife Monica attended at Ms. Bock’s office.

Issue:

This case comment focuses on the below issues which were discussed in Harrison:

1. Issue 1: Was there a genuine issue of testamentary capacity in relation to the 2022 Will; and
2. Issue 2: Was there a genuine issue of undue influence in relation to the 2022 Will.

Decision in Harrison:

Overview of the process of challenging a will:

To challenge a will in Saskatchewan, a challenger must go through two levels of hearings:

1. The first stage is a threshold Chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial;
2. The second stage (if the applicant is successful) is a trial hearing to actually determine the allegations made against the will.

The Court in Harrison noted that it was concerned with the first stage of a will challenge. The Court’s focus was thus centered on determining if Francis had provided sufficient evidence of a genuine issue which would justify the expense and delay of a future trial.

Issue 1: Was there a genuine issue of testamentary capacity in relation to the 2022 Will

The Court examined if Francis had provided evidence that Walter lacked testamentary capacity. Such analysis required the Court to review if Walter appeared unable to understand the below:

1. The nature and extent of his property;
2. The persons who are the natural objects of his bounty;
3. The testamentary provisions he is making; and
4. Whether Walter was capable of appreciating these factors in relation to each other, and forming an orderly desire as to the disposition of his property… (see para 50 of Harrison).

Francis argued that suspicious circumstances surrounded the execution of the 2022 Will. Francis stated that the fact the 2022 Will was executed almost four months before Walter’s death is suspicious in and of itself. Francis claimed that Walter’s naming of Ben as executor and his children as beneficiaries was inexplicable.  

Francis averred that Walter had never expressed any desire or intention to have anyone other than Francis as the executor and beneficiary of his estate. Based on Francis’ observations of his behaviour between 2019 and his death in 2022, Francis believes that Walter did not have the testamentary capacity to make the 2022 Will. Walter passed away a few months after the 2022 Will was signed.

Francis also appended a letter from a Melville lawyer (“Melville Lawyer”), who was Walter’s previous counsel and the lawyer who had prepared Walter’s 2018 Will. In this letter, the Melville Lawyer expressed concerns to Francis about Walter’s mental capacity, explicitly stating:

I suspect that Mr. MacMillan was a con artist who manipulated or coerced your brother into naming him as the executor for his estate. Your brother would not have had the mental capacity to make a new Last Will and Testament appointing Mr. MacMillan as his executor and Mr. MacMillan’s children as beneficiaries of his estate. The actions of Mr. MacMillan since being appointed as executor of the estate are self-explanatory.

Francis also included transcripts from Walter’s criminal court proceedings (2018–2021). These records, as summarized in the reasons of the court proceedings, allegedly showed repeated issues relating to Walter’s ability to instruct counsel:

1. Multiple lawyers (including the Melville Lawyer and other court-appointed counsel) were unable to obtain clear instructions from Walter, with at least one lawyer asking to withdraw for this reason;
2. The Crown and counsel expressed frustration about Walter’s lack of cooperation and inability to properly participate in his defence;
3. Francis suggested that these events created a public record documenting impediments to Walter’s lack of decision-making capacity during his criminal court proceedings.

Francis suggested that these patterns from Walter’s criminal proceedings—where his lawyers repeatedly cited difficulty obtaining proper instructions—were indicators that Walter lacked testamentary capacity around the time that Walter executed the 2022 Will. Francis’ argument was that these issues were not isolated to the criminal legal proceedings, but reflected a broader inability to understand complex decisions like executing a valid will in 2022.

However, Court in Harrison declined to order a trial on the ground of incapacity. The Court found no evidence suggesting a genuine issue relating to Walter’s capacity to make the 2022 Will. The Court expressly noted the lack of any medical records or direct evidence of Walter’s cognitive impairment as of 2022. Rather, Ms. Bock’s uncontroverted evidence showed Walter understood the process and provisions of the new will.

Moreover, the Court held that the mere fact that Walter’s home was untidy and needed repair did not mean that Walter did not understand the nature and extent of his property. The fact that he had his front door boarded up, and several locks on the back door was unusual but not demonstrative of a lack of capacity to make decisions when he executed the 2022 Will.

Moreover, the Court referenced a December 2021 transcript, which showed that Walter had been found to have capacity to make legal decisions in 2021.

The transcript provided a record of the Melville Lawyer re-appearing as counsel for Walter in a criminal proceeding. In that transcript, the Melville Lawyer indicated that the Melville Lawyer had canvassed 606 of the Criminal Code with Walter, and Walter entered a guilty plea. In a criminal proceeding, the court is required to ensure that an accused understands the implications of a guilty plea before accepting it. This is codified in section 606 of the Criminal Code, which outlines the conditions for a valid guilty plea. It outlines the types of pleas an accused can enter, the conditions for accepting a guilty plea, and procedures for handling situations where an accused refuses to plead etc.

The Court took this December 2021 transcript as confirming that as of 2021 Walter was in fact able to understand the criminal process, and also instruct his counsel. The Court wrote the below in Harrison:

[61]      The Court [in the criminal proceeding] accepted Walter’s guilty plea and the joint submission on sentencing. I see no reference to Walter’s lack of capacity or decision-making ability then. Surely, [the Melville Lawyer] would not have taken instructions to enter a guilty plea and represented to the Court that he had canvassed  606 of the Criminal Code with Walter if he believed that Walter could not give such instructions or understand the gravity of the s. 606 inquiry.

..

[76]             I accept that Walter could make decisions when he instructed [the Melville Lawyer] to enter a guilty plea to a criminal charge in December 2021. The Court heard and accepted the guilty plea and counsel’s submissions that he had canvassed s. 606 with Walter. Any evidence that Walter may have lost capacity between December 2021 and June 2022 is thin.  

The Court also disregarded the Melville Lawyer’s letter to Francis in which he wrote “Your brother would not have had the mental capacity to make a new Last Will and Testament…” The Court found that there was an insufficient evidentiary basis to conclude that the Melville Lawyer could make direct conclusions as to Walter’s capacity in 2022. We find the below in Harrison:

[64]          I have disregarded [the Melville Lawyer’s] letter in its entirety. [He] knew Walter and prepared the 2018 Will. The Court is unaware of how [he] can speak to Walter’s capacity beyond preparing and executing the 2018 Will. He does not even comment on his steps to ascertain Walter’s capacity then. He does not say when he next saw Walter again, but we know he represented Walter intermittently in his criminal matter between 2018 and 2021. [He] says nothing about his appearances in criminal Court nor does he provide any observations he made of Walter during those appearances. Further, [his] letter is not evidence. It is an unsworn letter appended to Francis’ affidavit. [His] comments about Ben are not based on actual knowledge of Ben or Ben’s relationship with Walter. Finally, his opinion that Walter did not have the testamentary capacity to execute a new will appointing Ben as executor is undermined by his representations to the Court in December 2021, when he entered a guilty plea to assault on Walter’s behalf and advised the Court that he had canvassed s.  606 with Walter.

Issue 2: Was there a genuine issue of undue influence in relation to the 2022 Will?

Francis made a second argument against the 2022 Will. Francis also argued that there was a genuine issue raised in relation to undue influence. Undue influence is defined as pressure which actually compels the testator to do something which they do not desire to do. The onus to show undue influence rests on the challenger.

Francis made the below arguments:

1. Francis alleged that Walter radically changed his testamentary plan from the 2018 Will (where she was sole beneficiary) to the 2022 Will (favouring Ben’s children). Francis asserted that this fact suggested coercion or improper influence by Ben;
2. Francis described the breakdown of Walter’s family ties and her own estrangement, coupled with the unusual selection of non-family beneficiaries, as amounting “suspicious circumstances;”
3. Francis further alleged that Walter’s erratic and paranoid behaviors (such as increased home security measures and isolation), as well as the poor state of his home, pointed to his vulnerability and susceptibility to coercion by Ben.

The Court reviewed the evidence and held that Francis had not in fact provided sufficient evidence to raise a genuine of undue influence. The Court relied on the below grounds:

1. There was no evidence that Ben was present during or involved in the process of making or signing the 2022 Will. Ben’s uncontested affidavit stated that he did not discuss estate planning with Walter, was unaware of the will’s particulars, and that Walter himself initiated any discussions about his estate;
2. Ms. Bock drew up the 2022 Will and had followed standard practices to verify capacity and ensure that instructions were voluntary. She detected no signs of coercion, pressure, or influence on Walter when he gave instructions or executed the Will.

The Court held that the mere fact of a dramatic change in beneficiaries, or evidence of Walter’s odd behavior, did not amount to proof of coercion.

Conclusion:

The Court held that Francis had failed to raise a genuine issue requiring a trial. The Court held below:

[82]           Without conflicting evidence on the issue of testamentary capacity or undue influence or a conflict in the evidence about Walter’s capacity or the issue of undue influence at the time the 2022 Will was executed, there is no reason to continue the matter to a trial. Francis has not raised evidence that Walter did not appreciate or understand the nature of the document or the extent of the property to be disposed of. Any odd behaviours Walter may have had do not appear to have impacted his mental competency to make a will.

The application for the 2022 Will to be proven in solemn form was dismissed. Francis was ordered to pay costs of $1,500 to Ben.

Harrison offers certain lessons for any will challenger. These include:

1. The evidence of the attending solicitor who took instructions from the deceased is often crucial in the eyes of the Court. Here, the evidence of Ms. Bock was very influential in convincing the Court that there was no genuine issue requiring a trial;
2. Suspicious behavior by an eccentric elderly relative, who suddenly makes a notable change in their will, is not itself sufficient evidence to justify the expense of a future trial. Rather, firsthand and direct evidence of testamentary incapacity or potential undue influence at the relevant time, will generally be required to justify the expense of a trial. For a relative who may not have had frequent contact with the deceased in their last years, it may be difficult to acquire firsthand evidence on such topics;
3. When alleging that there is a genuine issue of incapacity, it is very helpful to obtain supportive medical records of incapacity. In Harrison, the Court explicitly commented on the lack of any supporting medical records offered by Francis in relation to mental capacity (see para 73 and 81). That said, in light of the recent decision in Stradeski v Kowalyshyn, 2023 SKKB 177, it can also be very difficult for a challenger to obtain such medical records before stage 2 of a will challenge. In the view of this author, the disclosure difficulties posed by Stradeski in this regard may one day have to be addressed by the Court of Appeal.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. 

The recent Saskatchewan King’s Bench decision in Mang v. Hofer offers a reminder of the threshold criteria that an applicant must meet in order to become the administrator of an intestate estate.

For context, when a deceased dies without a will their estate falls into intestacy. If so, an administrator is appointed by the Court to distribute the estate property as per The Intestate Succession Act, 2019. This legislation governs situations in which there is no will. Most typically the person who applies to be appointed administrator is a family member of the deceased. On rare occasions a creditor of the deceased may apply to be the administrator of the estate. Whether or not a creditor is appointed as administrator will depend on whether their application meets all of the legal requirements imposed by law. In Mang, the application by the creditor did not meet those requirements.

Background:

The factual background in Mang included the below:

1. Michah Shapir Mang (“Mang”) claimed that he was a creditor of Leandra Lynne Newman (“Newman”). Mang sued Newman and two other people for injuries sustained when three people attacked him at a party (“Lawsuit”);
2. Mang later discontinued his claims as against the two other defendants. Mang then sought to continue his claim against Newman but then discovered that Newman had died in March 2021;
3. After Newman’s death, Mang then took steps to appoint a third-party lawyer (not the same lawyer who is discussed in this case comment) as the administrator ad litemof the estate of Newman (“Estate”). An administrator ad litem is a person appointed by the Court to make decisions for an estate during a lawsuit. This is typically done when there is no appointed administrator who is already administering the estate;
4. On March 3, 2024, the Court appointed the third party lawyer as administrator ad litem in of the Estate of Leandra Newman. By July 2024, the Lawsuit had been settled. It appears that the administrator ad litem entered into Minutes of Settlement (“Minutes”) to resolve Mang’s claim. The Minutes provided for the below:

1. Newman, personally, would pay Mang $180,000.00 to settle the action. By this time Newman had been dead for about three years, and so it was odd that the Minutes did not refer to Newman’s “Estate” as the entity required to pay such sum; and
2. Mang agreed to discontinue the Lawsuit upon the Minutes being signed. He did so in July 2024.

5. To actually liquidate and distribute an intestate estate there must be an administrator. The administrator will itemize the assets, sell them, produce liquid sale proceeds, pay all lawful professional fees, taxes and debts etc. At the end of this process there will be a pool of money left over that can be distributed to the beneficiaries of the intestate estate;
6. Mang thus required someone to step in and act as administrator of the Estate for the purpose of liquidating assets and distributing them. As a creditor of the Estate (under the Minutes) Mang had an interest in ensuring that the Estate got liquidated and distributed;
7. The decision in Mang therefore dealt with the application by Mang for letters of administration in the Estate. Interestingly, Mang did not wish the letters to be granted to Mang directly. Rather, Mang requested that the Court granted letters of administration to his personal lawyer (“Lawyer”), the same Lawyer who had acted for Mang when the Minutes were negotiated with the administrator ad litem of the Estate;
8. Newman had a common law spouse, Wesley Hofer (“Hofer”). Hofer indicated that he was cohabiting with Newman when she died on March 27, 2021 and they had continuously cohabited for over two years prior to that date. Hofer alleged that they had a spousal relationship. Thus, Hofer stood to be a beneficiary in the Estate;
9. Mang had not previously notified Hofer when Mang had appointed an administrator ad litem for the Estate and had negotiated the Minutes. Hofer only learned about such developments after the fact.

Issue:

This case comment focuses on the below issues which were discussed in Mang:

1. Issue 1: Was it appropriate to appoint the Lawyer as the administrator of the Estate?
2. Issue 2: What was the appropriate disposition on costs?

Decision in Mang:

The Court dismissed the application to appoint the Lawyer as administrator.

1. Issue 1: Was it appropriate to appoint the Lawyer as the administrator of the Estate?

The Court had serious concerns with the application to appoint the Lawyer as the administrator of the Estate. Out of the various deficiencies in the application, the below points are important for estate administration lawyers to bear in mind.

First, the Court did not find any jurisdiction to make the order. The Court noted that:

1. The Court had no evidence that Newman lived in Saskatchewan when she died; and
2. The Court had no evidence that Newman owned property in Saskatchewan when she died.

The Court was troubled by the lack of any evidence of what property the Estate even owned. Typically, the Court is presented with carefully compiled information on all of the assets which the deceased own and their value. In contrast, this application simply put the word “unknown” in relation to the listing of Estate property:

23      It appears [the Lawyer] relies on  4(1)(a)(ii): Newman lived outside Saskatchewan but left property here when she died. What property? [The Lawyer’s] statement of property, which she purports to verify by affidavit, says “unknown” in answer to every category of property in the statement. Section 4(1)expressly requires “proof” of the matters listed in subsection (a). In fact [the Lawyer] has tendered no proof at all of Newman owning any property here….

[emphasis added]

Second, the Court noted that the applicant Lawyer had no priority to be appointed. The Court noted that The King’s Bench Rules set out a clear priority of which persons are eligible to be appointed:

16-24 If the deceased died intestate, the persons entitled to apply for a grant of administration are the following in order of priority:

1. spouse of the deceased;
2. children of the deceased;
3. grandchildren and other issue of the deceased taking per stirpes;
4. father or mother of the deceased;
5. siblings of the deceased;
6. nephews and nieces of the deceased;
7. next of kin of the deceased of equal degree of consanguinity;
8. creditors of the deceased;
9. the official administrator.

[emphasis added]

The Court noted that Mang, a creditor, ranked second-last in priority. The spouse, Hofer, ranked first in priority. Thus, Mang had not established that he (much less his Lawyer) had priority to apply to be the administrator. Related to this, Rule 16-26 required that Mang clear off the interests of those with a greater priority in the Estate. Here, Mang had not obtained a court order or renunciation to clear off the prior rights of Hofer.

A third problem was that the Lawyer herself had no beneficial interest in the Estate property. It must be noted that Mang and his Lawyer are two distinct people in law.

Here, there was no power of attorney given by Mang in favour of the Lawyer. Thus, it was not appropriate to appoint the Lawyer to personally be the administrator of the Estate. Rule 16-25 requires that an applicant has a beneficial interest in the property to be administered. Here, the Lawyer personally had no stake or legal interest in the Estate property.

A fourth problem was that the Lawyer would be in a conflict of interest if they were appointed as the administrator of the Estate. An administrator of the Estate is bound in law to administer it in the interests of all Estate beneficiaries, and not to prefer the interests of an Estate creditor over the interests of the Estate beneficiaries. Here, Hofer had an interest in the Estate property. Thus the Lawyer as administrator would need to administer the Estate in the interest of the Estate beneficiary (Hofer). However, at the very same time, the Lawyer would be wearing a second hat, given the Lawyer’s existing solicitor-client relationship with Mang (a creditor).

33 None of this has been done. The originating application expressly contemplates Ms. Gebhart somehow being granted status as administrator as Mang’s “representative”. Nowhere in Saskatchewan law is this contemplated. Further, as is explored below, there is a professional and ethical dimension to this proposed course of action. Mang contemplates Ms. Gebhart — his lawyer, hired to collect $180,000 from a settlement entered into by a dead woman — would represent his interests. But that is not what an administrator does. The duty of administrators is partly reflected in para. 4 of the affidavit of applicant. The conflict issues seem obvious.

…

48      An administrator must assess and balance claims and interests. An administrator having a real or perceived bias or partiality toward any involved party should not be the administrator. The circumstances of this case speak for themselves. It is so clear [the Lawyer] is headed for trouble that I simply cannot understand how she did not see it, either before appearing in chambers or during, when the issue was specifically raised with her.

49      Again, the Law Society’s Codeis instructive:

4-1A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.

50      I will not belabour this point. It seems to me to be clear and obvious that [the Lawyer] is headed into a conflict situation. She acted adverse in interest to Newman and/or her estate when she acted on Mang’s collection matter. She cannot now act for that estate and Mang at the same time. She should not be the administrator of this estate as a “representative” of Mang or otherwise.

Given all of these deficiencies in the application, the Court dismissed the application.

2. Issue 2: What was the appropriate disposition on costs?

The Court was frustrated with the shortcomings in the application. These led the Court to order substantial costs against Mang:

57      …. As noted by this decision, numerous concepts were engaged. The material was not voluminous, true. But a page count does not solely determine complexity. A lot of work was required to untangle the mess that was plunked down before the Court.

58      The principle of general application is that costs follow the event, and the costs of a chambers matter ought to be determined right at that time. Having regard to all the considerations set out in Part 11 of our Rules and the applicable cases, I set the costs that Mang must pay to Hofer at $2,000.00, payable in any event of the cause and payable within 90 days of this decision. Further, these costs must be fully paid before any further steps are taken by or on behalf of Mang in this matter or regarding the Newman estate.

Conclusion:

The Court dismissed the application in its entirety. The Court also made an order prohibiting the Lawyer (or members of her law firm) from acting as administrator in the Estate of Leandra Newman.

Mang v. Hofer offers a reminder of the importance of carefully reviewing the legal requirements which govern your Court application. You need to methodically examine all legislation, rules or other legal requirements which your application must meet. You must then cross-reference them against the evidence supporting your own application. You must ensure that your application comprehensively meets each of the requirements.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. 

The recent Saskatchewan King’s Bench decision in Reader Estate v. Reader demonstrated the Court’s power to rectify a Will where a drafting error threatened to defeat the intention of the testator.

Background:

The factual background in Reader Estate included the below:

1. Sheryl Ann Reader (“Sheryl”) and Dale Rodger Reader (“Dale”) had married in 1972;
2. They had two children, Carmen Reader (“Carmen”) and Daryl Reader (“Daryl”). Both of Carmen and Daryl were born with cognitive and physical disabilities;
3. Sheryl and Dale separated on January 8, 2018;
4. Sheryl’s daughter Carmen died on March 7, 2018;
5. In September 2019, Sheryl signed a lawyer-drafted will dated October 2, 2019 (“Will”);
6. On November 1, 2019, Sheryl filed a petition seeking division of the family home and family property. Dale filed an answer on May 5, 2021;
7. Sheryl died on November 13, 2020. Sheryl in her Will left a life estate to her son, Daryl, in the form of a “Henson Trust”.  This type of trust is established primarily for the benefit of individuals with disabilities, particularly those who may receive government benefits. The key purpose of a Henson Trust is to protect the assets held within the trust from being considered as assets of the beneficiary for the purpose of determining eligibility for government assistance programs;
8. On February 8, 2023, letters probate issued in the Estate of Sheryl. They appointed Sheryl’s sisters, Linda Joy McCrank (“Linda”) and Debra Lee Olliver (“Debra”), as executrices of Sheryl’s Estate;
9. Daryl died on March 10, 2023;
10. On June 5, 2023, Dale was appointed as administrator of the Estate of Daryl;
11. On May 30, 2024, Dale Reader died;

Issues with the Will:

12. The Will contained an oversight. While the Will provided for a life estate for Daryl in the Henson Trust, this trust ended upon the death of Daryl. The Will did not then direct what would happen to the overall property remaining in the Estate after the death of Daryl. This was an omission by the lawyer who had drafted the Will in 2019;
13. The intention of Sheryl had been to designate her sisters, Linda and Debra, as beneficiaries in the Will relating to what property may still exist when Daryl died;
14. The lawyer who drafted the Will swore an affidavit to provide evidence about what instructions Sheryl had given him. It said in part:

9. I also explained to Sheryl that the Will should include provisions for who receives the benefit of the estate in the event that Sheryl either outlived Daryl or that Daryl dies before the whole of the Sheryl’s estate could be distributed to Daryl. Sheryl advised that in either of those circumstances she wanted her sisters, Linda Joy McCrank (“Linda”) or Debra Lee Olliver (“Debra”) to receive the benefit of the estate.

10. I drafted the Will as requested by Sheryl and in doing so included a provision that that [sic] Linda and Debra were the alternative beneficiaries, but I inadvertently failed to name Linda and Debra as the beneficiaries of any portion of the estate which remained in the event that Daryl outlived Sheryl but died prior to the entirety of the estate being distributed to Daryl.

Issue:

This article focuses on the below issues which were before the Court:

1. Issue 1: Did the Will provide for distribution of the Estate after the death of Daryl?
2. Issue 2: Should the Court rectify the terms of the Will to give effect to the intentions of Sheryl?

Decision:

The Court held the below:

1. Issue 1: Did the Will provide for distribution of the Estate after the death of Daryl?

The Court held that the Will, on its face, did not provide for the distribution of the Estate to a named beneficiary upon the death of Daryl.

The Court held that in the ordinary course, this drafting error would be corrected with consent of the affected parties. In this case, the dispute between Sheryl and Dale arising from their separation precluded such a resolution.

2. Issue 2: Should the Court rectify the terms of the Will to give effect to the intentions of Sheryl?

The Court held that it was appropriate that it re-write the drafting error to give effect to Sheryl’s intention at the time she signed the Will.

The Court noted that the Will’s failure to name Linda and Debra as beneficiaries of the residue was due to an admitted error by the lawyer. The Court accepted that Sheryl’s intention had been for Linda and Debra to inherit what remained of her estate after the death of her son, Daryl:

60      The evidence from the affidavits of Brenda Walper-Bossence and Donald Grant Orr satisfy me that Sheryl intended to name her sisters, Linda Joy McCrank and Donna Lee Olliver, as both her executrices and residual beneficiaries, to inherit what remained of her estate after the death of her son, Daryl. Ms. Walper-Bossence and Mr. Orr are senior, reputable lawyers. Their affidavit evidence is objective, convincing, and mutually corroborative of Sheryl’s intent.

The Court gave no criticism of the lawyer who made the drafting error, finding that such an error could “happen to anyone.” The Court held that this was an appropriate situation in which to correct the Will and reflect Sheryl’s intention at the time she made the Will.

Thus, the court rectified the Will. The Court did this by replacing para 3(c) of the Will with the below:

The intent of this change was to allow a final distribution of the Estate to Linda and Debra in equal shares, after payment of any outstanding debts or charges against the Estate.

Costs:

The Court reviewed prior case law and concluded that it was appropriate that Linda and Debra receive their costs from the estate. They had been required to bring this application to determine how to address the defect in the Will.

The Court therefore made the following order:

69 I see no reason not to follow this practice in this case. There was a defect in the Will which needed to be addressed. Dale challenged the Will, so no agreement was possible. Sheryl’s Executrices acted properly as trustees in applying to settle the issue. There were opposing views and claims which protracted the proceedings. The Court’s assistance was required to settle the matter.

70 I order that the reasonable and actual costs incurred by Sheryl’s Executrices be paid from the Estate. If there is a dispute over the reasonableness of the amount, that issue can be returned to me for decision.

Conclusion:

The result in Reader Estate was a practical one. It gave effect to what was the intention of the deceased, as to how her own property would be distributed.

Nowhere in the decision was the word “rectify” or “rectification” used. For the sake of interest, it is worth noting that the accepted legal term for re-writing a will is “rectification” of the Will. The equitable power of rectification is aimed at preventing the defeat of the testamentary intention due to omissions by the drafter of the will.

Where there is no ambiguity on the face of the will, and the testator has reviewed and approved the wording, Canadian courts will rectify the will and correct unintended errors in three situations:

1. Where there is an accidental slip or omission because of a typographical error;
2. Where the testator’s instructions have been misunderstood; or
3. Where the testator’s instructions have not been carried out.

In most situations, an application for rectification is supported by an affidavit from the solicitor who drafted the will documenting the testator’s instructions, and explaining how the solicitor or their staff failed to implement the instructions or made a typographical error (see Robinson Estate v. Robinson, 2010 CarswellOnt 4576, 2010 ONSC 3484 at para 24-25).