Wills Act Non‑Compliance With Formalities Part III 2000

Victoria, British Columbia

August 13-17, 2000

Civil Law Section

 

Uniform Wills Act Non‑Compliance With Formalities Part III

Background Material

Alberta

 

 

Explanatory Note

The materials submitted by the Alberta Commissioners consist of Report No. 84 of the Alberta Law Reform Institute - Wills: Non-compliance With Formalities. That Report contains three Parts.

Parts I and II are the Executive Summary of the Report and the List of Conclusions and Recommendations. As Parts I and II raise the issues in the most convenient fashion to facilitate consideration by the Section they constitute the Report of the Alberta Commissioners and will be available in both French and English language versions.

Part III consists of the body of the ALRI Report and is being distributed as background material.

Arthur L. Close, Q.C., Chair, Civil Law Section

ALBERTA LAW REFORM INSTITUTE EDMONTON, ALBERTA

WILLS: NON-COMPLIANCE WITH FORMALITIES

Final Report No. 84

June 2000

ISSN 0317-1604

ISBN 1-896078-01-X

ALBERTA LAW REFORM INSTITUTE

The Alberta Law Reform Institute was established on January 1, 1968, by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes, among others, of conducting legal research and recommending reforms in the law. Funding of the Institute's operations is provided by the Government of Alberta, the University of Alberta, and the Alberta Law Foundation.

The members of the Institute's Board are The Hon. Mr. Justice

B.R. Burrows; C.W.Dalton; A. de Villars, Q.C.; A.D. Fielding, Q.C.; The Hon. Judge N.A. Flatters; W.H.Hurlburt,Q.C.; H.J.L. Irwin, Q.C.; P.J.M. Lown, Q.C. (Director); A.D. Macleod, Q.C.; Dr. S.L. Martin, Q.C.; Dr. D.R. Owram; The Hon. Madam Justice B.L.Rawlins; The Hon. Mr. Justice N.C. Wittmann (Chairman); and Professor R.J. Wood.

The Institute's legal staff consists of P.J.M. Lown, Q.C. (Director); R.H.Bowes; J. Henderson-Lypkie and M.A. Shone. W.H. Hurlburt, Q.C. is a consultant to the Institute.

The Institute's office is located at:

402 Law Centre, University of Alberta, Edmonton, Alberta, T6G 2H5.

This and other Institute reports are available to view or download at the ALRI website:

ACKNOWLEDGMENTS

This project could not have proceeded so expeditiously without the contribution of a number of people. W.H. Hurlburt, Q.C. created a consultation memorandum that was clear, comprehensive and focussed. His clear exposition assisted both the consultants and the Board in reaching the final conclusions represented in this report.

The two major consultation meetings which were held were particularly helpful in identifying the incidence of the issue, and the relative merits of various solutions. We thank the participants for their time, preparation and advice.

The topic of formal non-compliance has arisen elsewhere. We are particularly grateful to Professor John H. Langbein and to Professor Lawrence W. Waggonner who provided thoughtful history, analysis and advice. They were the primary authors of the most recent Rules and Commentary contained in the Restatement of Law Third, Property, Wills and other Donative Transfers. With their help, we acknowledge the permission of the American Law Institute to reproduce helpful passages from the Restatement Third.

We were also assisted by comments from Manitoba, Saskatchewan and Western Australia, jurisdictions in which the proposed rules, or versions thereof, are already in place.

Finally we acknowledge the drafting assistance of Earl Evaniew, from the Department of Legislative Counsel, who helped create the proposed legislation.

A full statement of all the contributors is contained in Appendix A. We thank them for their contribution to these law reform proposals.

Table of Contents

PART I — EXECUTIVE SUMMARY ix

PART II — LIST OF CONCLUSIONS AND RECOMMENDATIONS xiii

PART III — REPORT 1

Chapter 1. INTRODUCTION 1

A. Reasons for project 1

B. Plan of report 1

C. Summary of recommendations 2

D. Results of consultation 2

Chapter 2. REQUIRED FORMALITIES 5

A. Purpose of formalities 5

B. Formalities prescribed for formal wills 6

C. Formalities prescribed for holograph wills 7

D. Formalities prescribed for wills of armed forces personnel and

mariners 8

E. International wills 8

F. Formalities required for some other dispositions that take effect on

death 9

G. What is “writing”? 10

Chapter 3. EXCLUSION OF WILLS FROM PROBATE

BY THE “STRICT COMPLIANCE” RULE 11

A. “Strict compliance” rule 11

B. Factual information 11

C. Law reform agencies, texts and commentators 12

D. Reported cases 13

1. Formal Wills 13

2. Holograph Wills 16

Chapter 4. SHOULD SOME REMEDIAL PROVISION

BE ADOPTED? 17

Chapter 5. THE FIELD OF CHOICE 19

A. Range of practical and effective remedial provisions 19

B. Description of possible remedial provisions 19

1. Relaxation of formalities 19

2. A “substantial compliance” provision 20

3. A dispensing power 22

Chapter 6. SHOULD A DISPENSING POWER BE ADOPTED IN ALBERTA? 23

A. History of dispensing powers in Canada and Australia and harmless

error rules in the United States 23

1. Dispensing powers in Canada 23

2. Dispensing powers in Australia 24

3. Harmless error provisions in the United States 25

B. Reasons for enacting a dispensing power provision 25

C. Objections raised to dispensing powers 26

1. Will non-testamentary documents be admitted to probate under

a dispensing power? 26

a. Statement of objection 26

b. Evidence provided by strict compliance with the

formalities 26

c. Evidence provided by attempted compliance 27

d. Other evidence 28

e. Experience with dispensing powers 33

f. Conclusion 34

2. Will the adoption of a dispensing power lead to sloppy practice

and the use of wills? 35

3. Will the adoption of a dispensing power impose an undue

burden on personal representatives? 36

4. Will the adoption of a dispensing power lead to increased

litigation? 37

D. Formal recommendations 38

Chapter 7. HOW WOULD A DISPENSING POWER OPERATE? 39

A. Should it be possible to dispense with a signature? 39

B. Should it be possible to dispense with writing? 43

1. Oral wills 43

2. Electronic records 44

C. Should the dispensing power apply to alterations, revocations and

revivals? 45

D. Should the dispensing power apply to wills that are made in

contemplation of marriage? 46

E. Transition 46

Chapter 8. CONCLUSION AND SUMMARY 49

PART IV — DRAFT LEGISLATION 51

APPENDIX A — Conduct of ALRI’s Project on Wills

that do not Comply with Formalities 53

APPENDIX B — Relevant Provisions of the Wills

Act, R.S.A. 1980 c. W-11 57

APPENDIX C — Reports and Recommendations for Reform 61

APPENDIX D — Recommended and Actual Legislation Providing for Probate of Non-Compliant Wills 69

APPENDIX E — Some Canadian Cases on Non-Compliant Wills in the Absence of a Dispensing Power 75

APPENDIX F — Some Cases on a Substantial Compliance Provision 81

APPENDIX G — Cases Under Dispensing Powers 83

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