Digest: Giesbrecht v Giesbrecht, 2018 SKQB 249

Date:September 18, 2019

Reported as: 2018 SKQB 249

Docket Number: SUR 196/18 JCY , QB18238

Court: Court of Queen's Bench

Date: 2019-09-18

Judges:

  • Brown

Subjects:

  • Statutes � Wills Act, Section 37
  • Wills and Estates � Testamentary Document
  • Wills and Estates � Wills � Interpretation

Digest: The applicant applied for an order pursuant to s. 37 of The Wills Act (Act) that a �fill-in-the-blank� will completed by the deceased was valid and capable of being probated. The blanks appeared to have been completed by the deceased and she and another person signed the end of the document. The deceased gave her husband, the applicant, a parcel of land and indicated that if the applicant predeceased her all of her real and personal property would go to her two sons. The document did not indicate a gift with respect to the rest and residue of the estate if the applicant did not predecease her. The document did not adhere to the requirements of the Act because only one person other than the deceased signed it. Further, the document did not satisfy the requirements of a holograph will because it was not entirely in the deceased�s handwriting. The respondent was the surviving son of the applicant and deceased; their other son predeceased his mother. The respondent did not oppose to the document representing the deceased�s intentions.
HELD: The court concluded that s. 37 applied to the document and declared it to be fully effective as if it had been executed according to the Act. The court accepted the notion of substantial compliance for s. 37 to apply. The section was also found to grant broad discretion to the judge. There must however, be clear testamentary intentions in the document for the judge to exercise discretion and invoke s. 37. The court was satisfied that: there was no fraud with respect to the document; and the document was testamentary in nature. Even though there was an intestacy left regarding the rest and residue since the
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