Interpreting Nova Scotia's Wills Act

Donalee Moulton for The Lawyers Weekly

March 5, 2010

Hindsight may be 20/20, but the Supreme Court of Nova Scotia has ruled that looking ahead is a legal requirement when it comes to holograph wills and new legislation concerning such wills. Specifically, the court concluded that a handwritten will dated March 25, 2006, did not constitute a valid last will and testament under the Wills Act, which was amended that same year but not proclaimed until two years later.

"This decision sets a precedent for the provisions of the whole act," said Helen Foote, a partner with Heritage House Law Office in Dartmouth, who represented the defendant, the estate of Jean Pringle MacDonald.

"There was only one issue - whether specific provisions of the Wills Act should be read prospectively as opposed to retrospectively or retroactively," she added.

In this case, the deceased's handwritten document dated March 2006 did not comply with the long-standing requirements of the old Wills Act. Although it was written in her handwriting and witnessed, the deceased had not signed the document and the witnesses did not sign in each other's presence. The new legislation allows such a document to be proved as a will if the court is satisfied that it expresses the last testamentary intentions of the deceased. The old legislation does not.

"In our case, the court had no doubt that this document expressed the deceased's testamentary intentions. The problem was that the subject handwritten document was executed before the Act was proclaimed in force. The court was therefore grappling with the question of whether these important new provisions applied to a will made prior to the statute's proclamation," said Stephen Kent, a lawyer with Kent & Barrett Barristers and Solicitors in Bedford, N.S., who represented the plaintiff.

The case law states that a new statute cannot apply retrospectively if doing so would create a penalty or prejudice to someone, on the principle that people cannot be expected to comply with a law that did not yet exist, he noted. Kent argued on behalf of the executrix that no such penalty or prejudice occurred here because, unlike the situation in Re Thibault Estate 2009 NSSC 4, the retrospective application would not affect rights that had already accrued under contract.

"In our case," said Kent, "we were only trying to give effect to the obvious intentions of the testatrix and affecting no one's prior rights, since a gift does not create a right in a beneficiary."

The court did not agree. Although Chief Justice Joseph Kennedy found that MacDonald was trying to make a will and had articulated her wishes, ultimately he concluded that the amended legislation was not retroactive.

In comparing Nova Scotia's legislation to that of Ontario, which has a retroactivity clause, Justice Kennedy pointed out that, "The obvious suggestion is that it would have been simple and clear and easy for the Nova Scotia legislators, the Nova Scotia drafters, to have included such a the Nova Scotia legislation should they have wished that legislation to be applied retroactively."

Justice Kennedy also explored the implications of Thibault, which dealt with a different section of the Wills Act and concluded that the section in question there could not be applied retroactively. "[We argued] if one section has to apply prospectively then surely all the rest have to," said Foote. "The judge basically agreed."

That agreement may have implications beyond the issue under consideration. "It may be that this decision and that in Thibault will signify as to when there can be retroactive or retrospective application of statutory provisions generally, where there is no clear expression on the part of the legislators that it apply to prior events," noted Kent.

Certainly there will be less confusion for the registrar of probate, who had declined to issue a grant of probate in common form in relation to this handwritten document because of the defects in its execution. "This decision makes it clear, particularly for registrars of probate, [a holograph will] has to be dated after August 18, 2008, the date of proclamation," said Foote.

The implications are less clear for individuals with such wills and their executors, noted Kent. "The implication of this decision is that this much-needed provision, which the legislators intended (according to the Hansard record) to cure technical defects in homemade wills, will not be available for any wills made prior to the statute's proclamation."

"There may be hundreds of such documents out there," he added. "This may have the effect of suspending the application of these important new curative provisions for a generation because many people, young and old, living today with handmade documents made prior to the date the statute was proclaimed and believing they have valid wills are mistaken."
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