532 THE ADVOCATE
VOL. 78 PART 4 JULY 2020
2017”. Part of the “Budget for 2017” document read as follows: “Get a will
made out at some point. A5 – way assets split for remaining brother and sisters.
Greg, Annette or Trevor as executor.” The deceased’s brother sought an
order that the “Budget for 2017” was the last will of the deceased.
The court granted the order. In the decision, the court noted that the document
reflected the deceased’s relationship with the beneficiaries. Further,
the court found that it was particularly significant that the deceased had
reviewed the “Budget for 2017” the day of his death and had modified it that
same day. This supported the inference that the document reflected the
deceased’s wishes on the date of his death and demonstrated a fixed and
final intention, even though the words “Get a will made out at some point”
would ordinarily suggest a lack of a fixed and final intention.
Hubschi suggests that there is another important principle in testamentary
document cases: avoiding a situation that would clearly be contrary to
the wishes of the deceased, based on the deceased’s relationships to the
people named in the testamentary document and the people who would
inherit if the testamentary document were not valid. In Hubschi, if the “Budget
for 2017” had not been a valid statement of testamentary intention, the
deceased’s estate would have gone to the sister of his birth mother, whom
the deceased had never met or contacted, rather than to his foster siblings
with whom he had a close relationship until his death. It is likely that, in
similar situations, the court would be more willing to declare the non-
compliant document to be effective, as intestacy would clearly not reflect
the deceased’s wishes.
WHAT TO LOOK FOR AND WHAT TO DO
Given the wide range of documents that have been recognized by our courts
as valid testamentary documents, what should lawyers advise their clients
to look for in a search for a valid will?
As the case law makes clear, most testamentary document cases involve
a document prepared by the deceased that either has been given to a close
friend or family member or is found in the deceased’s residence.
A prospective executor or administrator should conduct a thorough
search of the deceased’s residence and look for any document that purports
to give away the deceased’s possessions or deal with the deceased’s affairs
after death. If the prospective executor or administrator finds such a document,
or finds several such documents, they should note the location of the
document or documents and retain the originals in a safe place.
The executor should also attempt to obtain access to the deceased’s computers
in order to determine if they contain an electronic document that