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In Court Matters, Don’t Be A Cowboy (I’ll Give Y’all A Few Reasons Why…)


Reason 1: Because even cowboys mend fences!

The first example, Re Koziey Estate began with a rancher promising, over the fence, “Not to worry. I wouldn’t be that way and lock you off your property,” and “I’m not going to lock you out, but I want you to move this road onto your own side.”

What was their issue in the Koziey case? One cowboy, Koziey, owned a property bordering his fellow rancher’s (Taylor’s) lands. Koziey accessed his lands by a winding country road that, in spots, wandered over Taylor’s lands. After exclaimin’ as he did above, Taylor said not much more about the matter. Koziey kept up the road and added gravel an’ all; Taylor had almost nothin’ to do with the road but built a fence alongside.

Koziey died, an’ Taylor saw fit to step it up. He built a fence keeping Koziey’s kin out. Taylor sent threatening lawyers’ letters too. Koziey’s kin had enough and took it to law.

Koziey’s side claimed they owned that road. It was “adverse possession” of the road-land for over 10 years, and they got title and can’t be thrown off their land. Taylor claimed Koziey told him he’d move the road, around about 1992 or so. He ‘let’ him use it a while.

Amongst other cowboy sayings in the case, the judge weighed in. She said this about the whole mess (maybe with a bit more law-talk an’ suchlike):

  • Koziey kept Taylor out of his land long enough to own the stitch of road runnin’ through it.
  • Taylor never did nothin’ bout it; Koziey kept at it, even knowin’ it wasn’t really his.
  • And that’s that. Judgment for Koziey.

There wasn’t any harsh words form the law for these cowboys, but just the harsh reality of the dusty road they trod ‘pon.

Reason 2: A case of “all hat, and no cattle.”

In a second episode of the Re Goold Estate saga, the claimant tried again, after the lower court dismissed her case, to persuade the Court of Appeal to accept an absence of evidence as evidence.

Yes, I know, it sounds impossible…

In Goold, a relative of the testatrix alleged that the testatrix intended to revoke her prior formal will, with a new 2006 holograph will (a hand-written and signed final, fixed intention of wishes for property).

When the testatrix died in 2014, the original of the new will could not be found. The claimant would stand to inherit on intestacy, if the new will was found invalid.

She argued, correctly as far as it goes, that where the original of the new will was in the testatrix’s possession but cannot be found when the testatrix died, there is a presumption of revocation (that the testatrix destroyed her will, intending to revoke it).

However, as the lower court noted, this is a rebuttable presumption and requires mental capacity to be intact upon the moment of that presumption (i.e. that she had it in her possession near the time of her death, but it cannot be found after death).

No will, or revocation of a will, is valid without the proper level of decisional capacity to either make or revoke it (and a legal presumption cannot, without actual actual evidence, satisfy this foundational principle).

It is the latter issue where the Court found that the claimant fell short in proving her case. Apparently, she gave very scant evidence to show that the testatrix’s mental capacity was intact, to counter some significant issues noted in that field. The testatrix suffered from Alzheimer’s, and began to lose capacity. In 2010 there were signs of this, and by 2012 a doctor apparently declared her incapable.

The Court of Appeal found that, although the lower court had other reasons to uphold the will, the main issue was that for significant periods of time before she died, the testatrix likely lacked capacity and the claimant/appellant presented no evidence to rebut that.

So, yes: no evidence really is no evidence at all.

Reason 3: “Fool me once, shame on me…Fool me…you can’t get fooled again” (to quote Pres. GW Bush)

In the final episode of the Goold plated saga, the Court of Appeal decided who would pay some real coin for this apparent tumbleweed of a claim.

In the Court’s legal costs ruling, the Court of Appeal confirmed the normal rules apply: the unsuccessful party pays a portion of the successful party’s legal costs. Two interesting arguments arose:

  • The claimant was unsuccessful, but sought payment of legal costs to her.
  • Apparently she was a lawyer who decided to represent herself (and yet also sought a legal costs award).

The Court had this to say about that approach:

Further, while the appellant is a member of the Bar, she appeared before the Court as a self-represented litigant. Costs are intended to indemnify the successful party for legal fees incurred, and while self-represented litigants might be awarded costs under R. 10.31(5) in exceptional circumstances, none are present here….

On a parenthetical note, while the appellant appeared before the Court wearing her barrister’s robes, that attire is only appropriate where counsel appears as an officer of the court, not when counsel appears as a litigant…

The Court indemnified the executors for this full legal bills out of the estate (which indeed is the law, under s. 25 of the Trustee Act), and directed the unsuccessful claimant to pay some legal costs back to the estate on the normal successful-party rule.

So, in short: “you gotta know when to fold ’em” (frankly, not always an obvious point to a party involved).

Reason 4: All that glitters ain’t gold.

This is a policy perspective: is fool’s gold enough, or do we need coin? Can “close enough” count as a document, in the case of text messages? Does it matter if that document is supposed to be a final will?

In short: that depends, on where you live!

In several common-law jurisdictions (like Canada, Australia, the United States, and Britain, for example), there are cases coming out where the courts are accepting lesser forms of documents as a “will.”

In a recent example reported by BBC News, an Australian man saved a draft of a text message (never sent!) in which he typed out what otherwise could appear to have been his intentions for property distribution. He then committed suicide. Evidently, the Australian probate courts accepted this ‘document’ as his will. In 2006, their legislation was amended to accept less formal ‘documents’ as wills.

A significant difference exists in Alberta, and other jurisdictions, from the Australian laws. While there are some law reform studies underway elsewhere, the law in Alberta is that such a text message would not be a will.

In Alberta, the Wills and Succession Act, and the case-law, requires that for a self-made (holograph) will to be valid, it must:

  • Be entirely in the testator’s own hand-writing (not typed and not partly-written/partly-typed); and,
  • Be signed by the testator.

And, while it is likely that an e-signature (such as an email signature block) could be considered a “signature” in the case of life insurance declaration / designation changes — if all the legislated requirements and specificity is met — that would not apply to a document such as a text message.

A point to ponder: what are the potential negative consequences if the law does shift toward “text-a-will” sort of documents? Will clarity be assisted, or hindered? How many wills would an executor need to potentially search for, to ascertain the final will? Are the positives of ‘convenience’ better than the potential pitfalls?

Ever wonder about these questions, or other estate litigation or estate planning questions? Walsh LLP’s Trust, Wills, & Estate Litigation and Dispute Resolution Groupand our Wills & Estate Planning Group are here to help.  Contact us and read more!

Thanks for reading! Enjoy your weekend!