THE ADVOCATE 197
VOL. 80 PART 2 MARCH 2022
In Woods Estate (Re),6 the deceased was in the process of preparing a new
will. The deceased met with a lawyer and made notes, later asking the
lawyer for a meeting at the deceased’s residence. The lawyer attended at
the deceased’s home for will instructions and completed a will questionnaire.
The lawyer and the deceased arranged for the lawyer to return one
week later with the completed will. The deceased died 12 hours after meeting
with the lawyer.
Although the court was satisfied that the will questionnaire and the
lawyer’s instructions represented the testamentary intention of the
deceased, the law in Alberta does not allow a court to admit a testamentary
document to probate unless it complies with at least one of the formalities
of will execution. With the same findings of fact, the will questionnaire and
the lawyer’s instructions would likely have been admitted to probate in
British Columbia.
An example of a case in which the lawyer’s notes did not contain the final
intentions of the deceased was Evelyn Elizabeth Sawatzky v. The Estate of
Harry Leonard Sawatzky.7 In that case, the deceased contacted a lawyer to
make changes to his will. The lawyer prepared a typed draft will in accordance
with the deceased’s instructions and then made a number of handwritten
changes on the draft. The lawyer met with the deceased in hospital,
and the deceased requested 14 changes to the draft, most of which the
lawyer recorded on the draft will. The lawyer did not show the draft will or
the notations to the deceased.
The lawyer returned to the hospital the next day, by which time the
deceased had been heavily sedated. The deceased never recovered and died
shortly thereafter.
The court held that the lawyer’s draft will and notes were not a valid testamentary
document. The lawyer anticipated that the deceased would want
to make further changes to his will, there were discrepancies between the
draft will and the holograph will on which it was based, the deceased never
confirmed that his instructions represented his final intentions, and the will
was complex, with 36 beneficiaries. All of this evidence indicated that the
draft will did not contain the deceased’s final intentions.
There is only one reported case in which the court explicitly considered
whether notes could stand in as a provisional will as the court suggested in
George. In Timm v. Rudolph,8 an articling student visited the deceased in the
hospital. The deceased gave instructions for the preparation of a will, and
the articling student had the deceased sign the lawyer’s notes containing
the instructions. The articling student agreed to meet the deceased with the
final will the next week, but the deceased died the day before the meeting.