My Last Will and Textament
What would you look for in a document to determine if it was a legally valid will? An Australian man’s estate recently made headlines when the Queensland Supreme Court admitted an unsent text message into probate as his valid last will.
The deceased created the following text message on his cell phone shortly before he committed suicide:
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636
The message was addressed to the deceased’s brother and purported to leave the estate to him and a nephew. The deceased was also survived by his wife, though the marriage was apparently tumultuous and short-lived, and an estranged son. The unsent message was found in the drafts folder.
The judge considered the detail of the deceased’s instructions about the disposition of his assets (like providing the PIN to his bank account, location of cash). Other evidence, such as the deceased’s strained relationship with his wife and estranged son, contrasted with a close relationship with his brother and nephew, the fact his phone was found next to him and that he concluded the text with the words “My will” further solidified the Court’s analysis that he intended the text message to operate as his will. You can read the full Court decision here: Re Nichol, Nichol v Nichol  QSC 220.
Could this happen in Alberta?
A simple text message like the one in the Nichol estate would likely not qualify as a valid will in Alberta. However, like the Queensland law at the centre of that case, Alberta law gives the Court leeway to validate a document that does not comply with all of the requirements for a valid will if there is sufficient evidence to convince the Court the deceased intended the document to act as his or her will.
To start, how do you make a valid will in Alberta? The Wills and Succession Act requires a will to be:
- in writing;
- signed by the testator;
- in the presence of two witnesses;
- both of whom are present at the same time; and
- each of whom signs the will in the testator’s presence.
Alberta law also allows “holographic” wills: wills which are written entirely in the deceased’s handwriting and signed by the deceased, in which case no witnesses are required.
If the deceased doesn’t comply with those requirements, the Court could consider two sections of the Wills and Succession Act to validate the document:
- section 37: the Court can dispense with the formalities if satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will. One thing the Court cannot dispense with under this section is the requirement of a signature. Therefore, it would be of little help with a text message; or
- section 39: the Court could rectify a document by inserting a signature only if satisfied that the deceased intended to sign the document and give it effect as a will, but failed to do so because of “pure mistake or inadvertence.” This is meant to be used in narrow circumstances, and given the facts in Nichol, likely couldn’t have saved the text message without more – on those facts, the failure to sign was probably not a result of mistake or inadvertence, but a deliberate decision.
These powers are relatively new in Alberta and have not been widely considered by our Courts. While there are a handful of reported decisions, none have considered the level of departure from the formalities found in Nichol. However, we will likely see attempts to push the boundaries in the years to come as people change the way they manage and create their legal documents.
Contact us if you are unsure whether you are dealing with a proper will. Even if it doesn’t have all of the formalities, an Alberta Court may recognize it as a valid testamentary document, which may drastically alter the administration and distribution of an estate.
Thank you for reading,
PS - Our friends at Hull and Hull also recently wrote about this case from an Ontario perspective.