The recent Saskatchewan King’s Bench decision in Haines v Kuffner Estate is an example of the Court’s ability to validate a document, which may not have been executed with all the normal formalities. This flexibility offers the ability to ensure, as far as possible, that the testamentary wishes of a dying person are upheld.
Background:
The background of Haines involved the below facts:
- The deceased was Kim Kuffner (“Deceased”). The Deceased, while hospitalized and near death, sent a message (“Message”) on her iPad to her siblings, which she titled “My holographic will;”
- This Message named an executor, being Rheanne Haines, and provided instructions for the distribution of the Deceased’s estate. The Message read as follows:
My holographic will
Rheanne Haines to be executor.
House and contents to Ryan Haines.
Balance of investments to be split 60% to Ryan Haines and 40% to Rheanne Haines. Rheanne to be pet guardian.
May 19, 2023. Kim Kuffner
- The Deceased had no previous will, spouse, or children.
- Ordinarily, a Will is either typed (and signed before witnesses), or made in holographic fashion, in which it is entirely written in the handwriting of the testator. Here, the Message was sent when the Deceased was too weak to write or speak but could use an iPad with a stylus;
- Shortly after sending the Message, the Deceased was intubated and became unconscious. She died on May 21, 2023, shortly after sending the Message;
- Rheanne searched the Deceased’s home and did not discover any other testamentary documents or any previous Last Will and Testament;
- The Deceased was never married and had no children. She had three siblings: Wayne, Brenda, and Carol Haines, who was the mother of Rheanne and Ryan, and who died on February 10, 2024.
Issue:
The issue was whether the Message should be declared the Deceased’s Last Will and Testament, despite it not being executed in complete compliance with the formal requirements of The Wills Act, 1996.
Ruling:
What is s. 37 of The Wills Act, 1996:
37 is a provision which allows the Court to “cure” a technical issue relating to a testamentary document. The provision reads below:
Substantial compliance
37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies:
- the testamentary intentions of a deceased; or
- the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will.
Prior case law makes clear that 37should be broadly interpreted to enable courts to validate a testamentary document even where there is imperfect compliance with the formal requirements under The Wills Act, 1996.
The test to trigger the operation of s. 37 involved the below two considerations:
- The first factor is whether the document is testamentary in nature. In other words, does the document disclose the person’s testamentary intention, as to how they wish to dispose of their property upon death;
- The second factor is whether the document represents a deceased’s final wishes. Put another way, is the document embodying a fixed and final intention, and not a mere draft embodying a temporary or inconclusive expression of their intention.
Ruling in Haines v Kuffner Estate:
The Court noted that there was no opposition to the application before the court. All parties agreed that the Message represented the Deceased’s testamentary intention.
The Court in Haines held that the Message was deemed to be the Last Will and Testament of the deceased, Kim Kuffner, pursuant to s. 37 of The Wills Act, 1996. As a result, the applicant was allowed to apply for letters probate, using the Message as a testamentary document.
The Court found that the Message sent by the Deceased to her siblings was testamentary in nature and represented her deliberate and final intentions regarding the disposition of her estate.
The Court relied on the below grounds:
- The Message began with “My holographic will;”
- It named an executor;
- It named a Pet guardian;
- It provided specific instructions for the distribution of her assets; and
- It concluded with the date and her name.
Separately, the Court also noted that there was no dispute that the messages received by Brenda and Wayne, and appended to their affidavits, were sent by the Deceased from the Deceased’s device.
Further, there was no evidence that the Deceased was confused or otherwise suffering from a decline in her cognitive ability at the time she sent the Message to Brenda and Wayne setting out her last wishes. In fact, her messages revealed clarity of thought and an awareness that her death was imminent:
34 There is nothing unclear in the message about Kim’s testamentary intentions. Although she could no longer write, and thus the formal requirements of the Act respecting a holographic will were not met, I conclude that the message is testamentary in nature and that it represents Kim’s deliberate and final intentions as to the disposition of her estate.
The Court recognized that s. 37 should be broadly interpreted to validate a will even without compliance with formal requirements.
The Court also held that the applicant was entitled to solicitor-client costs of the application payable by the estate of the Deceased. It is suggested that such was a proper order, in that any legal fees incurred in this application, would benefit the entire Estate (by obtaining certainty on how to distribute the Estate).
Conclusion:
Haines is a reminder that a Court should generally be focused on substance, over technical form, when it comes to validating a testamentary document.
Here, the Message did not meet the formal or technical requirements of a valid will. However, the Court was satisfied that the Message embodied the testator’s true intentions behind the document, even if the form was faulty.
Haines also recognized that in this day and age, technology is a vital method of communication for many persons. As such, a broad interpretation of s. 37 that recognizes this modern reality, is crucial:
[36] The broad interpretation of 37of the Actis responsive to the modern reality that for some people, their only means of communication is through electronic devices. Here, it was the only means available to Kim who was near death, too weak to write or speak. In this case, an inflexible interpretation and application of s. 37 would have denied Kim the agency to direct how her estate was to be disposed of.