Court Accepts Handwritten Notes As Wishes Of Deceased

Written on behalf of Arbesman Hamilton LLP

The Supreme Court of Nova Scotia has ruled that handwritten notes outlining the final wishes of a deceased woman can be used to update her will.

The deceased died on September 1, 2015, at the age of 92. She was predeceased by her husband, and left behind an estate of $6.7 million.

Discovery Of The Notes

While going through the deceased’s personal effects, the personal representative named in her will found four handwritten notes in the safety deposit box the deceased kept at a bank. None of these notes were signed or witnessed; obligations which are required for a valid will and outlined in Section 6 of Nova Scotia’s Wills Act.

What The Law Says

The personal representative then brought an application before the courts to determine whether the notes should have been permissible under Section 8 of the Act, which states:

Where the court of competent jurisdiction is satisfied that a writing embodies

(a)               The testamentary intentions of the deceased; or

(b)                The intention of the 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, the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act. 2006, c. 49, s.2.

A Look at the Content of the Notes

The Court agreed with the representative that the first two notes, which outlined how the deceased would like to be buried, and how she would like her funeral and burial to occur, did not contain any testamentary disposition – or directions on how to distribute her estate. These notes, the court agreed, did not need to be entered into probate.

 

However, the remaining two notes, dated in 2009 and 2012 respectively, were a different story. The 2009 note directed the representative to “distribute any items of a personal nature, as I have directed in any written list attached to or with my Will”. That note as well as the 2012 note contained directions on how to distribute some personal items, as well as small changes or additions to cash bequests. The directions on cash distribution impacted just ¼ of 1% of the total estate assets.

The court referenced another Nova Scotia decision dealing with directions found outside of a will. After listing several factors needed to determine intent, the court wrote that despite all those factors, “the question is what is the intention of…can we glean the intention of the deceased person? That is really the sole guide and control for making the determination that I have to make today.”

The court noted the that title of the caption of the third note, which was “Bequest on my death – persons named are to be living”, reflected the deceased’s intention to make a testamentary disposition of property upon her death. In addition, the note was addressed to her representative and contained directions for how she wanted her estate to be divided. The court, satisfied that the content of the letter demonstrated intention, added that the note was also found inside a personal safety deposit box. Meanwhile, the fourth note was addressed the same way, was captioned “Death Request”, and also contained directions on how her estate should be divided.

With this evidence in mind, the court determined “All of the foregoing factors are highly indicative of a testamentary intention to add these further bequests contained in memos 3 and 4 to those contained in the original Will.”

Despite this decision, Arbesman Hamilton LLP recommends that it is still wise to write and update a valid will. Our lawyers have been helping our clients plan for the future since 1953. Whether you require a simple will or a complex estate plan involving primary and secondary wills, we can assist you every step of the way. Contact us online or by phone at 416-481-5604 to start your planning.