December 17, 2015

Linda was cleaning up her deceased sister-in-law Cynthia’s new apartment when she discovered a document inside a Sobeys bag. It was in the deceased’s handwriting and discussed distributing her property upon her death. It named Linda as executrix. As Linda continued to clean Cynthia’s residence she found another such handwritten document (this time, tucked away on a ledge), helpfully titled “Cynthia’s will!” Linda sought probate on the first document as a will and the second document as a codicil.

Cynthia’s sister Ruby challenged the validity of the codicil before the Newfoundland Supreme Court (Trial Division) in King Estate v. Hiscock, 2015 CanLII 78084. Newfoundland’s Wills Act, has substantively the same provisions with respect to the validity of a holograph will as Ontario’s Succession Law Reform Act: a will in the handwriting of the testator and signed by him or her will be valid.

The will divided Cynthia’s estate among several people (including her brother Calgary). However, the codicil left the lion’s share of her estate to her brother Calgary. The codicil read as follows:

(For:  Cynthia J. King’s Estate.)

(Cynthia’s will!)                                                       May 8th/2012

I; Cynthia J. King – (the sister of Calgary J. King) says for my estate to do the following:  Out of the money; (myself & my brother have a joint savings account); but out of the money my debts should be paid and my funeral paid for in full. I leave the balance off the money in my account; which is a joint savings account:  the balance is to be left →


to my brother – Calgary James King.  Cynthia J. King says “Yes” to what I have written here.  Also my house on number seven (7) Suez Street; St. John’s; Nfld. is to be sold & money left to my brother; Calgary J. King; the balance left from the house being sold.  This is my wish & my Request.

Witness:         Jean Asernault-

(Cynthia  King’s  Best Friend)

The deceased’s sister argued that the codicil was not intended to have disposing effect as it was just a plan for the contents of a subsequent will to be made (an actual testamentary document would be expected to be placed in a more secure location).

Justice Marshall held that nothing should turn on the codicil not being stored in a secure location. While the codicil was found on a ledge, the will itself was found in a Sobeys bag. It was true that Jean Arsenault (her name is spelled wrong in the codicil) ultimately never witnessed the codicil, but a witness’ signature was not required to be a valid handwritten will. Furthermore, her Honour found that the reference to Jean was more likely a reference to the will (Cynthia had advised Jean about the will).

The codicil failed to name an executor, address what would happen with the residue of her estate, refer to the will or use the word “bequest”. These problems however, Justice Marshall held, are issues of interpretation rather than validity. Her Honour found that the codicil clearly contains dispositive words: phrases such as “This is my wish & my Request” were dispositive in context. Her Honour held that, if valid, the codicil would revoke only the inconsistent parts of the will.

The deceased’s sister also argued that the codicil was not properly signed. While the deceased wrote her name repeatedly throughout the codicil, there was no signature at the end to “breathe the life of intention” into the codicil.

Justice Marshall found that the codicil had been validly executed, even though nowhere in the document did Cynthia’s signature “stand alone”. At a minimum, the following sentence in the middle of the codicil was a resounding confirmation and authentication of the codicil:  “Cynthia J. King says “Yes” to what I have written here”. The Court found that it would be unjust to defeat Cynthia’s testamentary intentions because she did not sign her will on a stand-alone basis.

While Cynthia’s brother thus secured a larger interest in Cynthia’s estate, this victory may be pyrrhic as legal costs will likely eat up a large portion of the estate. Justice Marshall ordered that all of the parties who participated in the litigation receive their costs from Cynthia’s estate on a solicitor/client basis (the Newfoundland equivalent of substantial indemnity costs). Her Honour held that such costs were appropriate as the issue was created by the manner in which Cynthia wrote her codicil. Had Cynthia retained a lawyer to draft her will and codicil, the above dispute might have been avoided.