2004 SKQB 12 Q.B.G. A.D. 2003 No. 2147 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: MARY BULIZIUK and GEORGE BULIZIUK and PUBLIC TRUSTEE, ADMINISTRATOR OF THE ESTATE OF HELEN PISCHNOT RESPONDENT R.G. Gates, Q.C. for the applicants G.A. Treleaven for the respondent JUDGMENT MATHESON J. January 15, 2004 [1] The applicants have applied for an order setting aside the grant of Letters of Administration of the Estate of Helen Pischnot and granting to them Letters Probate with respect to a document, or documents, purporting to be the last will and testament of Helen Pischnot in which they are named as executors and sole beneficiaries. [2] The applicants met Helen Pischnot in September, 1996. The second hand store operated by the applicants was less than block from where Helen Pischnot resided. [3] In December, 1996, Helen Pischnot became ill. The applicants began attending at her residence three times each day, to bring groceries to her, clean her house, shovel snow from her sidewalks, mow her lawn and effect minor repairs to the house. [4] In February, 1999, Helen Pischnot fractured her hip. The applicants transported her to the hospital, where she was confined for two months. The applicants visited Helen Pischnot in the hospital three times each day, and looked after her house and cat. On the hospital social work referral form it is stated, under the heading of Next of Kin, “no family”, but the plaintiffs were listed as “friends”. [5] After Helen Pischnot was released from the hospital on April 7, 1999, the applicants continued to visit her each day and assist her with chores and errands. [6] In August, 1999, Helen Pischnot gave to the applicants an old tape recorder which required repairs. After it was repaired conversation between the applicants and Helen Pischnot was recorded and subsequently transcribed. It is clear from the transcript that Helen Pischnot wanted all of her property to go to the applicants upon her death. [7] On January 10, 2000, Sheri A. Hupp, at the time an associate with the law firm of Gates and Company, met with Helen Pischnot. Sheri Hupp does not recall the meeting, but she made notes at the time. Helen Pischnot stated that she wanted will prepared; the applicants were to be named as executors and sole beneficiaries. [8] On January 26, 2000, Sheri Hupp again talked to Helen Pischnot, who apparently did not recall the conversation on January 10. However, she asked Sheri Hupp if she had will. She was told “Not yet because she hadn’t signed anything”. [9] Helen Pischnot told Sheri Hupp not to come to her residence that afternoon because she was feeling sick; she had the flu. Helen Pischnot declined to set date for the signing of the will which Sheri Hupp had drafted. [10] On February 8, 2000, Sheri Hupp went with Ronald Gates to Helen Pischnot’s residence. Mary Buliziuk was at the residence when they arrived and informed them that Helen Pischnot had fallen the previous evening and had the shakes. [11] Ronald Gates went into Helen Pischnot’s bedroom to talk to her. When Sheri Hupp, who apparently had the draft will with her, joined them in the bedroom she noted that Helen Pischnot was sitting in chair and looking very weak; she was non-responsive. Nevertheless, Helen Pischnot said her hand hurt and she could not sign the will. [12] When Helen Pischnot was asked what she wanted in her will, she said whatever you want. When asked again “She said you know want to leave everything to you (ie. Ron)”. [13] Helen Pischnot died shortly thereafter without signing the document proffered as her last will and testament. [14] On April 26, 2001, the Public Guardian and Trustee of Saskatchewan was appointed administrator of Helen Pischnot’s estate. No beneficiaries have been located. There is $44,245.25 in cash remaining in the estate trust. [15] The applicants have applied for an order declaring that the draft will prepared by Sheri Hupp, or her notes, or both, be admitted to probate as the last will and testament of Helen Pischnot. LEGAL REQUIREMENTS FOR WILL [16] The law of wills in Saskatchewan is governed by The Wills Act, 1996, S.S. 1996, c. W-14.1 (the “Act”). [17] Section of the Act states that holograph will, wholly in the handwriting of the testator, and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by witness. Otherwise, s. 7(1) provides the formalities for valid will: 7(1) Unless provided otherwise in this Act, will is not valid unless: (a) it is in writing and signed by the testator or by another person in the testator’s presence and by his or her direction; (b) it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will; (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses who are in the presence of the testator at the same time; and (d) at least two of the witnesses in the presence of the testator: (i) attest and sign the will; or (ii) acknowledge their signatures on the will. [18] The documents propounded as the will of Helen Pischnot do not, of course, comply with the requirements of s. 7(1). However, the applicants have referred to s. 37 of the Act, which states: 37 The court may, notwithstanding that 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 court, on application is satisfied that the document or writing embodies: (a) the testamentary intentions of deceased; or (b) the intention of the deceased to revoke, alter or revive will of the deceased or the testamentary intentions of the deceased embodied in document other than will. INTERPRETATION OF SECTION 37 [19] In Re Balfour Estate (1990), 1990 CanLII 7460 (SK QB), 85 Sask. R. 183 (Sask. Q.B.), Gerein J. noted that the equivalent section in the Manitoba statute had been interpreted in Re Pouliot (1984), 1984 CanLII 3766 (MB QB), 30 Man. R. (2d) 178; 1984 CanLII 3661 (MB QB), 17 E.T.R. 225; Re Briggs (1985), 21 E.T.R. 127; and Kuszak v. Smoley (1986), 1986 CanLII 4996 (MB QB), 46 Man. R. (2d) 14; 23 E.T.R. 237 as giving the court broad discretion to validate testamentary document. He agreed with that approach. [20] Instructions for will have been accepted as valid will, but only if properly executed: Re McNeil (1918) 45 N.B.R. 479 (C.A.); George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.). [21] In Re Mate Estate (1999), 1999 CanLII 12652 (SK QB), 179 Sask. R. 298 (Sask. Q.B.), the applicants had applied for probate of the instructions delivered by Elizabeth Mate to her solicitor. The notes had not been signed by Elizabeth Mate. Dielschneider J. noted that although Gerein J. had concluded, in Re Balfour Estate, supra, that s. 37 of the Act should be interpreted as giving the court broad discretion to validate testamentary documents, Gerein J. had also stated: [6] Yet it must be kept in mind that the section’s purpose is to overcome noncompliance with formal requirements. It does not empower the court to render document testamentary in nature when it is otherwise not so. [22] Dielschneider J. remarked that “Some form of execution must appear on the document sought to be admitted to probate pursuant to this section. Section 37 does not dispense entirely with the requirements of s. but rather grants relief against its formality.” [23] The solicitor’s notes were not accepted as the last will and testament of Elizabeth Mate. [24] An appeal was taken from the refusal by Dielschneider J. to accept the solicitor’s notes. In an oral judgment dated May 17, 2000, the Saskatchewan Court of Appeal stated that “We are not satisfied that Mr. Justice Dielschneider erred in his construction and application of s. 37 of The Wills Act”. [25] Section 37 of the Act permits the court to order document to be fully effective as will notwithstanding that “it was not executed in compliance with all the formal requirements imposed by this Act” (emphasis added). The discretion granted to the court does not extend, however, as concluded in Re Mate Estate, supra, to endorsing a document as testamentary which does not comply with any of the formal requirements of the Act as to execution; in particular, a document which does not bear the signature of the deceased. [26] Although there is no reason not to accept the assertion of Sheri Hupp that her notes accurately reflect the instructions she received from Helen Pischnot, it has been acknowledged that not only did Helen Pischnot not sign either the notes of Sheri Hupp or the draft will, she never saw either of those documents. [27] Helen Pischnot no doubt intended to bequeath her assets to the applicants. However, she did not do so in any manner prescribed by The Wills Act. Thus, regretfully, it must be concluded that the documents presented as the last will and testament of Helen Pischnot do not meet the statutory requirements for valid last will. Consequently, the application must be dismissed, but under the circumstances the applicants shall be entitled to their costs, on a solicitor and client basis, to be approved by me, payable from the estate assets.
The applicants asked for an order setting aside the grant of Letters of Administration and granting Letters Probate with respect to a document purporting to be the Will of the deceased. The document was a draft Will prepared by the deceased's solicitor, which was never signed. HELD: The application was dismissed, but the applicants were entitled to their costs on a solicitor and client basis, payable from the estate. Section 37 of The Wills Act permits the Court to order a document to be fully effective as a Will notwithstanding that it was not executed in compliance with all the formal requirements imposed by the Act. The discretion granted to the Court does not extend to endorsing a document as testamentary which does not comply with any of the formal requirements of the Act as to execution, and, in particular, a document which does not bear the signature of the deceased.