Yarmie Estate, Re, 2008 SKQB 74

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 15, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKQB 74;(2008), 313 Sask.R. 160 (QB)

Yarmie Estate, Re (2008), 313 Sask.R. 160 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. MR.016

In The Matter Of the Estate of Victoria Yarmie, deceased

(2007 No. 1628; 2008 SKQB 74)

Indexed As: Yarmie Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

February 15, 2008.

Summary:

The deceased passed away at the age of 85. The original 2002 will was last seen in her possession. No original will was found in her effects, but her lawyer had a file copy of the 2002 will. A number of documents in the deceased's handwriting were located, along with one typewritten document purportedly signed by the deceased and one witness. The applicant, a grandson of the deceased, sought a determination under Queen's Bench Rule 452, of (1) whether or not any of the handwritten documents were holograph wills and (2) whether there was any valid will, or if the deceased died intestate.

The Saskatchewan Court of Queen's Bench held that the lawyer's file copy of the will could not be admitted to probate, as the presumption arose that the deceased destroyed the will ("animo revocandi"), and there was no evidence before the court to rebut that presumption. The court admitted portions of three handwritten documents with respect to specific bequests of furniture. The remaining documents did not contain an expression of testamentary intention. The typewritten document did not comply with the formalities of s. 7 of the Wills Act, and there were too many uncertainties to admit it to probate under s. 37 of the Act.

Executors and Administrators - Topic 1030

Grant of probate or letters of administration - Application for grant - Where will is lost - The deceased passed away at the age of 85 - The original 2002 will was last seen in her possession - No original will was found in the effects of the deceased, nor in any place where she conducted business - Her lawyer had a file copy of the 2002 will - The Saskatchewan Court of Queen's Bench held that the lawyer's file copy could not be admitted to probate - The court considered rule 709 of the Queen's Bench Rules; namely, that "[w]here a grant is sought of a will that is lost or destroyed, proof thereof shall be made as the court may require" - As the 2002 will was last in the possession of the deceased, and as no original could be located, the presumption arose that the deceased destroyed the will ("animo revocandi") - There was no evidence before the court to rebut the presumption - See paragraphs 9 to 13.

Wills - Topic 14

Testamentary instruments - Elements of a will - Testamentary intention - The deceased passed away at the age of 85 - The original 2002 will was last seen in her possession - No original will was found in her effects, but her lawyer had a file copy of the 2002 will - Eleven documents in the deceased's handwriting were located, along with one typewritten document purportedly signed by the deceased and one witness - The applicant, a grandson of the deceased, sought a determination under Queen's Bench Rule 452, of (1) whether any of the handwritten documents were holograph wills and (2) whether there was any valid will, or if the deceased died intestate - The Saskatchewan Court of Queen's Bench admitted portions of three handwritten documents with respect to specific bequests of furniture - With respect to the residue of the estate, the court found that the deceased died intestate - Six of the documents did not contain an expression of testamentary intention, as the words used did not contemplate the disposal of property on death - Two documents were too vague for the court to determine testamentary intention - The typewritten document, titled "Continuation of will", did not comply with the formalities of s. 7 of the Wills Act; namely, it was typed and could not be considered a holographic will; there was no evidence as to who typed the document; and there was no evidence concerning the witness - Further, there were too many uncertainties to admit the typewritten document to probate under s. 37 of the Act, as there was no evidence of what will was being continued; the dates did not proceed in a chronological way; and it did not set out a coherent, clear testamentary intention - See paragraphs 15 to 48.

Wills - Topic 63

Testamentary instruments - Holograph wills - Validity of - [See Wills - Topic 14 ].

Wills - Topic 1588

Preparation and execution - Formal validity - Evidence and proof - [See Wills - Topic 14 ].

Wills - Topic 2342

Revocation - By act of testator - Lost will or codicil - Presumption of revocation where will is lost - [See Executors and Administrators - Topic 1030 ].

Cases Noticed:

Flaman Estate, Re (1997), 156 Sask.R. 305 (Q.B.), refd to. [para. 11].

Pouliot Estate, Re, [1984] 5 W.W.R. 765; 30 Man.R.(2d) 178 (Q.B.), refd to. [para. 16].

Bennett v. Toronto Trust Corp., [1958] S.C.R. 392, refd to. [para. 17].

Holyk (Estate), Re (1992), 103 Sask.R. 1 (Surr. Ct.), refd to. [para. 25].

Currie v. Potter, [1981] 6 W.W.R. 377; 12 Man.R.(2d) 396 (Q.B.), refd to. [para. 25].

Archer Estate, Re, [2005] Sask.R. Uned. 63; 2005 SKQB 118, refd to. [para. 27].

Statutes Noticed:

Wills Act, S.S. 1996, c. W-14.1, sect. 2, sect. 7(1), sect. 7(2), sect. 37 [para. 14].

Authors and Works Noticed:

Macdonell, Sheard and Hull, Probate Practice (4th Ed. 1996), p. 190 [para. 44].

Counsel:

Ian D. McKay, Q.C., for the applicant.

This application was heard before Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina. Gunn, J., gave the following judgment on February 15, 2008.