Bellamy Estate, Re, (2011) 374 Sask.R. 175 (QB)

• Judge: Acton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 18, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 374 Sask.R. 175 (QB);2011 SKQB 200

Bellamy Estate, Re (2011), 374 Sask.R. 175 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JN.007

In The Matter Of the Estate of John George Bellamy, deceased

Yeong Oh (plaintiff) v. Trevor Robinson (defendant)

(2003 Q.B.G. No. 1028; 2011 SKQB 200)

Indexed As: Bellamy Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Acton, J.

May 18, 2011.

Summary:

Bellamy died. He left a three page handwritten will with various written amendments, before and after his signature. The administrator pendent lite of Bellamy's estate applied to prove the last will and testament in solemn form. At issue was what parts of the document and codicil were to be admitted for probate, whether the holograph will was valid and, if so, the interpretation of various phrases used.

The Saskatchewan Court of Queen's Bench admitted the holograph will to probate.

Wills - Topic 28

Testamentary instruments - Codicils - Holograph codicils - [See Wills - Topic 63 ].

Wills - Topic 61

Testamentary instruments - Holograph wills - General - The Saskatchewan Court of Queen's Bench stated that "not only was a holograph will to be in the handwriting of the testator and signed by him or her, it must also manifest the deceased's deliberate and final intention to dispose of property on death ... there is a presumption of validity with respect to a holograph will ... Although it is a generally accepted principle that any alteration to a will must be initialled, where the instrument is a valid holographic one, it may be altered or revoked by holographic writing on the instrument itself and without the necessity of the testator signing or initialling the change. ... the court must ensure that the documents and language used disclose a cogent, coherent testamentary intent. The court cannot speculate on the testamentary intention or manufacture a will which it considers appropriate." - See paragraphs 16, 17, 25. 27.

Wills - Topic 63

Testamentary instruments - Holograph wills - Validity of - Bellamy wrote his will on three consecutive pages in the back of one of his yearly journals, then signed his name - He made handwritten alterations in those three pages - Some were illegible, some lacked certainty, and none were initialled or dated - On the reverse side of page 4, after his signature, was a handwritten note that one beneficiary named in the original writing was now in the "not a plugged nickle [sic] category" - Expert evidence established that all of the handwriting was Bellamy's - The Saskatchewan Court of Queen's Bench held that the original three pages and all alterations found before Bellamy's signature (unless illegible or uncertain) were admitted to probate as Bellamy's holograph will - Further, the alteration appearing after his signature constituted "concise, cogent and coherent evidence of the testamentary intention of Bellamy and an amendment to his holograph will. It is not invalidated by the fact that it appears after his signature nor that it does not have a separate date. This amendment to the original holograph will is similar to the other amendments by Bellamy in his own handwriting, the only difference being that it appears on a separate page after his signature." - Accordingly, any specific bequests to the person who through the alteration was no longer entitled to a "plugged nickel" were invalid due to the alteration (i.e., codicil).

Cases Noticed:

Yarmie Estate, Re (2008), 313 Sask.R. 160; 2008 SKQB 74, refd to. [para. 16].

Dieno (Inez) Estate v. Dieno (Jacob) Estate, [1996] 10 W.W.R. 375; 147 Sask.R. 14 (Q.B.), refd to. [para. 18].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 18].

Vout v. Hay - see Hay Estate, Re.

Bidulka Estate, Re (2006), 282 Sask.R. 273; 2006 SKQB 196, refd to. [para. 22].

Buliziuk v. Pischnot Estate, [2004] 4 W.W.R. 200; 244 Sask.R. 250; 2004 SKQB 12, refd to. [para. 24].

Webber Estate, Re (1969), 8 D.L.R.(3d) 182 (Sask. Q.B.), refd to. [para. 25].

Letwinetz Estate, Re (1983), 27 Sask.R. 59 (Surr. Ct.), refd to. [para. 25].

Bunn Estate, Re, [1992] 4 W.W.R. 240; 100 Sask.R. 231; 18 W.A.C. 231 (C.A.), refd to. [para. 26].

Archer Estate, Re, [2005] Sask.R. Uned. 63; 15 E.T.R.(3d) 165; 2005 SKQB 118, refd to. [para. 27].

Authors and Works Noticed:

Macdonell, Sheard and Hull, Probate Practice (4th Ed. 1996), p. 190 [para. 20].

Counsel:

Yeong Oh, on her own behalf;

Nolan J. Dooley, for the Estate of John George Bellamy;

Jason R. Brunton, for the Estate of Clarice Tunall.

This application was heard before Acton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on May 18, 2011.