How Long is « awhile »?: Kirst Estate (Re) and Holographic Wills

29 octobre 2019 | Carolyn Hogan

( Disponible en anglais seulement )

A recent decision of the Court of Queen’s Bench of Alberta, Kirst Estate (Re), provides a useful reminder of some of the issues that may arise through the use of holographic wills.

William Kirst (the “Testator”) of Calgary, Alberta died in 2010, leaving behind six surviving adult children, one of whom passed away prior to the decision. The Testator was predeceased by his spouse and one son. A handwritten will was discovered amongst the Testator’s papers over six months after the Testator’s death, which left everything to his surviving children, with the following caveat:

Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters.

Whitehorn Kirst was the youngest child of the Testator, and he had never moved out of his parents’ house except for brief periods living with girlfriends or while on tour as a musician. Whitehorn lived with the Testator prior to his death. The house was the single largest asset in the estate. Of the four children of the Testator who testified, two took the position that the Court should find a life estate in favour of Whitehorn, as they believed the Testator intended for Whitehorn to remain in the house indefinitely, while two took the position that “for awhile” means a short period of time sufficient to get his affairs in order.

The sole issue before the Court was the interpretation of the phrase “for awhile”.

The testator’s will, dated December 1, 1995, handwritten and unwitnessed, was what is known as a “holographic will”. As the will was made in 1995, and the Testator died in 2010, the will is governed by the Wills Act, RSA 2000, C. W-12, which was replaced on February 1, 2012 by the Wills and Succession Act, SA 2010, c W-12.2. Section 7 of the Wills Act provides as follows:

A testator may make a valid will wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

Holographic wills are recognized in most Canadian provinces, including Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland. In Prince Edward Island, the legislation only makes direct mention of holographic wills in cases of members of the Armed Forces of Canada or any mariner or seaman when at sea or in the course of a voyage. In British Columbia, a holographic will is not recognized in the Wills, Estates and Succession Act, SBC 2009, c 13, s 58 except in cases of members of military forces. Also, a will that does not comply with the required formalities in BC is not valid unless the Court orders it to be effective under the legislation, or in certain circumstances where it was otherwise valid in the jurisdiction where it was made or in which the testator was ordinarily resident.

Generally, a valid holographic will must be entirely in the handwriting of the testator and signed by the testator. No other formalities are generally required. Holographic wills may come in numerous forms, perhaps most famously a farmer in Saskatchewan scratched a valid holographic will into the fender of a tractor he was trapped underneath. The key to most holographic wills, however, is that the will be wholly in the testator’s handwriting; as such, a “will kit” with pre-printed material which has not otherwise complied with the formalities of execution will not be a valid holograph will unless the handwritten words can stand on their own (see the Alberta Supreme Court decision in Austen, Re (1967), 61 DLR (2d)).

For certain testators who are not otherwise willing or able to obtain legal advice, a holographic will may allow them to have their last wishes respected. Holographic wills may also be useful even in circumstances where legal advisors are involved in the drafting of a formal last will and testament; if the testator is suffering from an illness, a holographic will may be used as a precaution for the interim period before a formal will can be drafted by the legal advisor.

The facts of Kirst Estate (Re), however, illustrate the difficulties that may be created by holographic wills that contain clauses that are not obvious and straightforward in their interpretation. Although the Testator may have felt that his instructions were clear, his children disagreed and the litigation to resolve the dispute ultimately resulted in anger and resentment amongst the family members.

In interpreting the Testator’s holographic will, the Court relied on the fundamental principles of testamentary interpretation recently set out by the Alberta Court of Appeal in Hicklin Estate v Hicklin, 2019 ABCA 136:

First, a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one.

Second, a court must read the entire will…

Third a court must assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so.

Fourth, a court may canvas extrinsic evidence to ascertain the testator’s intention.

The Court in Kirst determined that the meaning of “for awhile” could be ascertained from the will itself, by giving the words their natural and ordinary meaning. The Court found that the Testator’s intention was to permit Whitehorn to remain in the house, but only for so long as was agreed to by all of the surviving siblings. The gift to Whitehorn was a conditional gift, subject to a condition subsequent that the surviving siblings agree on how long he continues to live at the house. The Court found that the condition was not satisfied, and therefore his entitlement to live in the house ended and he was required to vacate the premises.

Based on the will as written, the decision in Kirst Estate (Re) seems to be a correct interpretation of the text. At least two of the Testator’s children, however, felt that the Testator’s true intention was to create a life estate in favour of Whitehorn. In such circumstances, it is unclear whether the Testator’s wishes have truly been respected, or whether they have been frustrated by the Testator’s poor choice of wording. Although holographic wills are useful and important estate planning tools and may be convenient in the right circumstances, the decision in Kirst Estate (Re) illustrates that they are no substitute for effective legal advice and a properly drafted will.

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