Requirements of a Valid Formal Will and Validating a Non-Compliant Will

Leslie Taylor

The requirements of a valid formal will are set out at sections 14 and 15 of the Wills and Succession Act, SA 2010, c W-12.2:

Requirements of a valid will

14 To be valid, a will

1. 1. must be made in writing,
   2. must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will, and
   3. subject to any order made under section 37, must be made in accordance with section 15, 16 or 17.

Formal will

15 A will may be made by a writing signed by the testator if

1. 1. the testator makes or acknowledges his or her signature in the presence of 2 witnesses who are both present at the same time, and
   2. each of the witnesses signs the will in the presence of the testator.

Where the requirements of a formal will are not met, however, section 37 of the Wills and Succession Act permits a Court to validate a non-compliant will, as follows:

Court may validate non‑compliant will

37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will.

In the recent decision of McCarthy Estate (Re), 2021 ABCA 403, the Alberta Court of Appeal was tasked with considering the validity of a formal will signed by a deceased person but not witnessed, as required by section 15 of the Wills and Succession Act.

In McCarthy Estate, Pamela Beverly McCarthy died suddenly leaving a document in her home office titled “This Is the Last Will and Testament of me, Pamela Beverly McCarthy” which was signed and dated August 13, 2019. The document was five numbered and initialed sheets of paper, naming executors, listing and disposing of all of Ms. McCarthy’s property and providing directions as to organ donations and the disposition of her remains. There was no evidence challenging the validity Ms. McCarthy’s signature. The document contained a place for the signature of a witness, but was not witnessed.

The chambers judge was not satisfied that the evidence presented met the section 37 test permitting the Court to validate a non-compliant will. On review however, the Court of Appeal overturned the lower court decision and opined that the two overlapping components of the section 37 test were met in that the document “sets out the testamentary intentions of the testator and was intended by the testator to be her will”. In coming to its decision, the Court of Appeal considered the following evidence:

• The document was entitled: “This Is the Last Will and Testament of me, Pamela Beverly McCarthy”.
• There was no serious challenge as to the authenticity of Ms. McCarthy’s signature on the document.
• The document was a carefully prepared, five-page, typewritten writing setting out in considerable detail the testamentary wishes of Ms. McCarthy.
• With respect to finality of the document:
  • McCarthy mentioned to others that she was working on her will in the months before August 13, 2019.
  • McCarthy mentioned to others after August 13, 2019 that she was relieved that she had finalized her will.
  • The metadata from Ms. McCarthy’s computer did not show any changes to the document after August 13, 2019.
  • The document was typed up in a formal way, covered all of the topics usually covered in a will, contained no “blanks”, and was printed, signed, and dated by Ms. McCarthy.
• With respect to creation of the document:
  • The writing was found among Ms. McCarthy’s effects in her home office.
  • The metadata from Ms. McCarthy’s computer demonstrated that she last edited and saved the document on August 13, 2019, and printed it on that day.
  • (Note: the validity of a formal will does not depend on who drafted it.)

In validating the non-compliant will, the Court of Appeal opined that the requirement that a will be witnessed by two witnesses is to ensure that the will is a genuine document. And importantly, the Court of Appeal opined further that so long as the authenticity of the deceased’s signature on the writing is admitted or proven, the need for witnesses can be safely overlooked.

The Court of Appeal found that there was clear and convincing evidence demonstrating the authenticity of the document, notwithstanding the absences of witnesses, and that the objectives of formal execution could be dispensed with under section 37 of the Wills and Succession Act. The Court of Appeal concluded by declaring the five-page document dated August 13, 2019 and signed by Ms. McCarthy to be her last will and testament.