Court Accepts Handwritten Notes as Valid Expressions of a Deceased’s Intentions

Mark Feigenbaum

A Nova Scotia court recently found that handwritten notes found in the home and safety deposit box of a deceased woman contained her true intentions and should be treated as valid testamentary dispositions during the probate process.

What Happened?

The deceased passed away in Halifax in September 2015 at the age of 92. Her Will had been executed in June 2009 and appointed her solicitor as her personal representative.

The solicitor undertook his duties in October 2015. He subsequently found four handwritten notes in the deceased’s home and in the same safety deposit box where her Will had been. None of these notes had been signed or witnessed in compliance with the formality requirements under Nova Scotia’s Wills Act. It appeared that they had been created without legal advice.

The solicitor filed an application to determine whether these handwritten notes were admissible in the probate process.

The Handwritten Notes

Notes 1 and 2 had both been written prior to the deceased’s Will and contain directions for her funeral visitation, cremation, and burial. They do not contain any testamentary dispositions and were therefore not relevant.

Note 3 is dated June 2009 and clearly written after the Will was executed because it references the Will. Note 4 is dated December 2012, also written after the execution of the Will.

The actual disposition of the deceased’s assets is contained in the original Will and consists of five cash bequests: four bequests of $2000 made to the sons and daughter of the deceased’s niece and nephew, and a fifth bequest of $10,000 to a church in New Brunswick. The remainder of the estate was to be divided in specified to six named charities including the Salvation Army, Autism Nova Scotia, the Canadian Cancer Society, the Heart and Stroke Foundation, and the Society for the Prevention of Cruelty to Animals. The total value of the estate is approximately $6.7 million.

Clause 4 in the Will was significant to the proceedings. It directed the deceased’s personal representative to “distribute any items of a personal nature, as I have directed in any written list attached to or with my Will.”

The changes listed in Notes 3 and 4 were all additional bequests of cash and personal property. None of them revoked any of the bequests in the original Will:

• Note 3 increased the cash bequests to the sons and daughter from $2000 to $2500 and added two extra individuals to the list of beneficiaries (who would also receive $2500);
• Note 3 also reaffirmed the list of charities found in the Will and sets out the deceased’s wishes as to what should happen with various personal articles, including jewelry, art, and other household items;
• Note 4 added two new cash bequests- one to another person ($1,500), one to another charity ($10,000);
• Note 4 also included an additional list of personal items to be distributed to various named individuals, described as an “additional list” to the first list kept in the safety deposit box.

The total amount of the additional cash bequests outlined in Note 3 and 4 is $18,500 (representing about ¼ of 1% of the total estate assets.

The Law

A previous decision by the Nova Scotia Probate Court noted set out the law that applies to this situation.

In that case, the court emphasized the need to carefully examine all documents before it in order to ascertain the true intention of the deceased and to determine whether those documents actually represent the deceased’s true and final wishes, even if the documents had not necessarily been in compliance with the formality requirements under the Wills Act.

The court outlined several (non-exhaustive) factors to be considered:

• What is the degree of the formality of the language in the document?
• Is it dated?
• Is it signed?
• Has it been sealed?
• Was it delivered to a person, a specific person, with or without instructions as to what to do with it?
• Were there are any statements made by the deceased, either at the time of delivery, or in the document itself that speak to the anticipation of death; that the document was intended to reflect a disposition after death?
• Is there any indicia of when it was expected that the document would read?
• How permanent was the document intended to be – was it written in ink, or in pencil?
• What is the certainty of the bequests set out in the document?
• Are there reasons offered for gifting as set out in the document?
• Is there a reference to an existing Will that might tie it back to a Will?
• Is the document was on a form or is it entirely in the handwriting of the deceased?

The burden (i.e. responsibility) of establishing testamentary intention is on the person making an application (in this case, the solicitor). That person must satisfy the court that, on the balance of probabilities, the documents in question embodies the wishes of the deceased.

The Decision

The court adopted the factors previously recognized by the Probate Court and made several observations about the Notes.

The court noted that several aspects of Note 3 all of which indicated a testamentary intention on the part of the deceased including the fact that:

• Note 3 is captioned “Bequest on my death- persons named are to be living”;
• Note 3 was made after the original Will was executed and was contemplated, at least in part, by Clause 4 in the Will;
• Note 3 was addressed to the solicitor;
• Note 3 affirms the charitable donations listed in the Will;
• Note 3 was found in the deceased’s safety deposit box along with the original Will, which is an indication that the note was intended to accompany the Will as a testamentary instrument.

With respect to Note 4, the court found that:

• Note 4 was addressed to the solicitor, who was the personal representative of the estate;
• Note 4 was found in an envelope captioned “Death Request” and appeared to be signed by the deceased;
• Note 4 was found in the same safety deposit box as the original Will.

The court noted that, although there was no direct evidence proving that Notes 3 and 4 were in the handwriting of the deceased, it should be inferred from the circumstantial evidence surrounding the notes as well as where they were found that it had been the deceased who had handwritten by the deceased.

Additionally, there were no revocations of any sort contained in either of the Notes. Instead, they simply contained additional bequests that were relatively minor given the total value of the estate. These additional bequests had been set out with certainty and had obviously been made in contemplation of death.

The court concluded that the solicitor had met his burden of proving, on the balance of probabilities, that both notes had been handwritten by the deceased and that they embody a fixed and final expression of intention to included these additionally outlined bequests in the disposition of her property upon death. The court was satisfied that Notes 3 and 4 should be treated as valid testamentary dispositions and should be admitted to Probate.

Effective estate planning requires guidance from a deeply knowledgeable and experienced lawyer and tax professional. Proactive planning with the assistance of such a professional can significantly decrease the chances of future estate litigation, and ensure your assets are distributed per your wishes. Mark Feigenbaum can help you avoid the biggest legal and financial risks that can arise in planning your financial future. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792.