Nielsen Estate, Re, 2012 SKQB 15

• Judge: Danyliuk, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 12, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 15;(2012), 389 Sask.R. 75 (QB)

Nielsen Estate, Re (2012), 389 Sask.R. 75 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. FE.024

In The Estate Of the Late Nielsine Kerstine Nielsen, Deceased

(2011 Sur. No. 183; 2012 SKQB 15)

Indexed As: Nielsen Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Danyliuk, J.

January 12, 2012.

Summary:

The deceased gave initial instructions for a will and a draft was sent to her a few days later. She died before she signed the will. The applicant sought admission into probate of the unexecuted document. She relied on s. 37 of the Wills Act.

The Saskatchewan Court of Queen's Bench dismissed the application.

Wills - Topic 1575

Preparation and execution - Formal validity - Substantial compliance or dispensation power - The deceased gave initial instructions for a will and a draft was sent to her a few days later - She died before she signed the will - The applicant sought admission into probate of the unexecuted document - She relied on s. 37 of the Wills Act - The Saskatchewan Court of Queen's Bench reviewed the case law and dismissed the application - First, a number of Saskatchewan cases stated that the document had to, at least, be signed by the testator - Saskatchewan law required at least some attempt at execution of a formal will - Second, the cases allowing documents to be probated despite deficiencies generally involved cases where it was clear those documents expressed the final wishes of the testator and were not subject to doubt or potential revision - That was not the case here - Finally, there were cases where the deceased might have been confused as to the need to sign the will or the process or formalities involved with same - There was no evidence of that here - The deceased did not sign her draft of the will.

Cases Noticed:

George v. Daily et al., [1997] 3 W.W.R. 379; 115 Man.R.(2d) 27; 139 W.A.C. 27; 143 D.L.R.(4th) 273 (C.A.), refd to. [para. 15].

Buckmeyer Estate, Re, [2009] 1 W.W.R. 142; 318 Sask.R. 176; 2008 SKQB 260, refd to. [para. 15].

Vardy Estate, Re (2005), 249 Nfld. & P.E.I.R. 112; 743 A.P.R. 112; 2005 NLTD 111, refd to. [para. 15].

Buliziuk v. Pischnot Estate, [2004] 4 W.W.R. 200; 244 Sask.R. 250; 2004 SKQB 12, refd to. [para. 15].

Mate Estate, Re (1999), 179 Sask.R. 298 (Q.B.), affd. (2000), 199 Sask.R. 14; 232 W.A.C. 14; 2000 SKCA 63, refd to. [paras. 15, 22].

Balfour Estate, Re (1990), 85 Sask.R. 183 (Q.B.), refd to. [para. 15].

Oh v. Robinson - see Bellamy Estate, Re.

Bellamy Estate, Re, [2001] 9 W.W.R. 538; 374 Sask.R. 175; 2011 SKQB 200, refd to. [para. 16].

Sawatzky et al. v. Sawatzky Estate, [2010] 2 W.W.R. 530; 244 Man.R.(2d) 42; 2009 MBQB 222, refd to. [para. 16].

McDermid Estate, Re, [1995] 1 W.W.R. 366; 122 Sask.R. 232 (Q.B.), refd to. [para. 16].

Warren Estate, Re (1993), 112 Sask.R. 62; 1993 CarswellSask 514 (Q.B.), refd to. [para. 16].

Statutes Noticed:

Wills Act, S.S. 1996, c. W-14.1, sect. 37 [para. 14].

Counsel:

Shelley L. Gentek, for the applicant, Alma Stewart;

No other counsel listed.

This application was heard by Danyliuk, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following fiat on January 12, 2012.