Cockle Estate, Re, (1998) 216 A.R. 191 (CA)

• Judge: Côté, Russel and Sulatycky, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 03, 1998
• Citations: (1998), 216 A.R. 191 (CA)

Cockle Estate, Re (1998), 216 A.R. 191 (CA);

   175 W.A.C. 191

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. JN.073

James Brandrick (applicant/respondent) v. Kathleen Cockle, by her trustees and guardians Nita Dianne Magdiak and James Brian Jackson, Beatrice Prymak, Nita Dianne Magdiak, James Brian Jackson, James Brandrick, Dorothy Brandrick, The Canadian Bible Society, The Alberta Paraplegic Foundation (Northern Division), Loyal Orange Lodge Association of Mannville, McQueen Memorial United Church of Mannville, Alberta, (respondents/respondents) and Her Majesty The Queen as presented by Alberta Environmental Protection Fish and Wildlife Services (respondent/appellant)

(9703-0585-AC)

Indexed As: Cockle Estate, Re

Alberta Court of Appeal

Côté, Russel and Sulatycky, JJ.A.

June 3, 1998.

Summary:

This matter involved the interpretation of s. 5 of the Wills Act and, specifically, whether a testator could acknowledge his signature to witnesses without the witnesses having seen or being able to see the testa­tor's signature on the purported will.

The Alberta Surrogate Court, in a decision reported at 203 A.R. 18, held that s. 5 of the Act required the signature which was acknowledged to be visible to the attesting witnesses. The decision was appealed.

The Alberta Court of Appeal dismissed the appeal.

Wills - Topic 1556

Preparation and execution - Attestation - Acknowledgment or making of signature by testator in presence of witnesses - A testatrix asked two witnesses to sign her and her husband's will - The testatrix concealed part of the document so that any signatures were not visible to the attesting witnesses - The witnesses looked for signatures, but were prevented by the testa­trix from seeing any - At issue was whether the testators had acknowledged their signatures to the witnesses - The Alberta Surrogate Court held that the will was not properly attested under s. 5(b) of the Wills Act, stating that: "... for a will to be acknowledged, at the very least, a signature must be visible to the witnesses if they looked for one" - The Alberta Court of Appeal agreed with that proposi­tion of law and dismissed an appeal.

Counsel:

D. Kinlock, for the appellant;

J.J. Klimek, for the respondents.

This appeal was heard on June 3, 1998, at Edmonton, Alberta, before Côté, Russell and Sulatycky, JJ.A., of the Alberta Court of Appeal. Côté, J.A., delivered judgment from the bench on June 3, 1998 and released the following memorandum of judgment on June 9, 1998.