BACKGROUND AND FACTS. Hugh was divorced in He had four adult children. widowed in January She had three adult children.

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1 BACKGROUND AND FACTS Hugh Palmer MacKinlay and Lulu Ellen MacKinlay were teenage sweethearts, but in time moved to different provinces and lost contact with one another. They subsequently married different spouses. Hugh was divorced in He had four adult children. widowed in January She had three adult children. Lulu was Hugh sought out and renewed his relationship with Lulu in November of Shortly thereafter they commenced a common law marriage. Hugh properly made and executed a will dated the 8th day of December The effectiveness of this will was the subject of the appeal. He made a first codicil to the will which was properly executed on the 26th day of March, On April 3, 1992, the couple was married. A second properly executed codicil, dated the 4th day of April 1992, was made by Hugh. This second codicil was prepared by Lulu after discussion with Hugh, was in her handwriting and was written by her at the instruction of Hugh to deal with an item, motor vehicles, which was not specifically dealt with either in the will or in the first codicil. Hugh had been advised by his doctors that he had cancer of the liver and would live for six to nine months. Unfortunately, complications arose and his condition worsened. He was in hospital from the 6th day of April 1992 until he died on the 14th of that month. During his illness, he discussec estate matters with Lulu, with his children of his first marriage, and with a number of others. Unfortunately, he did not discuss these affairs with his solicitor.

2 2 It appears that none of the people involved had any idea that the marriage had revoked the will of the 8th day of December 1989 and the first codicil to that will The following is a copy of the second codicil dated the 4th day of April

3 3 The key issues were: 1. Does the codicil dated the 4th day of April 1992 revive the will dated the 8th day of December 1989 and the first codicil dated the 26th day of March Should the Court require that external evidence be admitted. 3. Does Public Policy require that the Court not revive a will revoked by marriage. FIRST ISSUE Does the codicil dated the 4th day of April 1992 revive the will dated the 8th day of December 1989 and the first codicil dated the 26th day of March Ed.) states at page 118: Thomas G. Feeney, The Canadian Law of Wills, Volume 1: Probate (2nd There must be found in the codicil itself words that can be construed as "showing an intention to revive" within the section of the Act. A mere statement that a codicil is a codicil to a revoked will is not sufficient to revive it. Feeney, at page 119, continues: "The problem that usually confronts a Court of Probate to determine whether a revoked will is revived or not, is often a difficult one of construction to be sure that the codicil shows the necessary "intention to revive". It seems that the codicil must make some clear allusion to at least one of the provisions of the revoked will in order for it to be said that the codicil shows a sufficient intention to revive. However, if the codicil expressly uses the word "confirm" with reference to the revoked will, although it makes no reference to any of its provisions, it is felt that, despite some English authority to the contrary, the Court should declare a revival." To revive a will requires that there be a codicil, properly executed, which

4 4 shows an intention to revive as stated in Section 21 of the Wills Act which, in part, reads: No will or any part thereof which has been in any manner revoked is revived otherwise than by the re-execution thereof, or by a codicil executed in manner in this Act required, and showing an intention to revive the same. The Court should put itself in the position of the Testator considering his knowledge and considering his surrounding circumstances. If the word confirm or the word revive is used in a properly executed codicil, it is probably sufficient to revive a revoked will. If a will is properly re-executed, it will be valid. If there is some provision in the codicil which is totally contrary to the provisions in the will, that would be important evidence of an intent to change the will and perhaps an intent to revive it. It was argued by the Appellant that there was no provision in the second codicil which was contrary to the will of December 8, Further, the words "confirm" or "revive" were not used in the second codicil. My client argued that on the face of the codicil and on the wording of the codicil it would be very difficult, if not impossible, for the Court to find a true intention to revive the will in the circumstances. The leading case in law of revival of revoked wills is In The Goods of Steele. Please note that the report of that case found at (1) Law Rep. 1 P. & D. 575 also reports two other cases In The Goods of May and In the Goods of Wilson. The three cases were decided together and reported on July 28, Sir J.P. Wilde discussed the state of the law before the original Wills Act being passed. He said at page 578: "I hesitate to accept the conclusion, that the express words of the

5 5 section meant to leave the matter in the same state in which it would have stood if they had never been introduced... I therefore infer that the legisla-ture meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testators property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question. In other words, I conceive that it was designed by the Statute to do away with the revival of wills by mere implication. n (Emphasis added) Sir Wilde continues on page 580 discussing his conclusion that the reference to an earlier will is usually "nothing but a blunder", or: Sir Wilde continues: "The employment of an attorney to draw the codicil, who has made an earlier will, and has been in ignorance that an intermediate will has been made." (Emphasis added) "I am, therefore, of opinion that the Court ought to be slow to conclude that a testator has manifested in this indirect way a desire to revoke his last will, and that it should scrutinize narrowly the language of a codicil which is said to shew such an intention." My client argued that the testator was in ignorance of the effect of his marriage, and that there was nothing manifested in the so called second codicil which would indicate a desire to overcome the legal effect of the marriage and to revive the revoked will. In The Goods of Steele, the testator used the word confirms in the codicil and made significant changes to the provisions of his last will. In the face of those difficulties, Sir Wilde still found that the actual last will was valid and had never been revoked by the codicil which referred to a former will. The second case reported with In The Goods of Steele is In The Good~ of May. The latter is a case where the testator had made a will, but later married; he

6 6 then made a fresh will revoking his former will. He made a codicil referring to his first will by date (the will revoked by his marriage). In this codicil he described it as a codicil to the last will and testament of me, but used the date of the will made prior to his marriage. Sir Wilde stated at page 581: "If parol evidence is admissible, it is plain that this reference to the earlier will was nothing but a mistake on the part of the attorney who drew it; but I do not think it is necessary to decide whether it was so or not. For I am unable to perceive any sufficient evidence on the face of the codicil itself that the testator entertained an intention to revive the former will. His marriage itself had revoked it." (Emphasis added) It was argued that the reasoning of Sir Wilde in the.may case was closer to my clients case than those cases mentioned by the Respondents, especially the Davis case. In The Goods of May case, there is a codicil which in error referred to a will which had been revoked by marriage. My client submitted that Hugh, through ignorance of the law, had executed a codicil which referred to the will of December 1989 which had been revoked by his marriage. It was argued that the Court should follow the reasoning in In The Goods of May because there was no sufficient intention shown on the face of the second codicil that the testator entertained any intention to revive a will which, unknown to him, had been revoked. It was pointed out that the reasoning of Sir J.P. Wilde in the case of In The Goods of Steele has been followed by all of the common law jurisdictions since 1868 and that it would be unwise not to follow the same reasoning in the case under consideration. My client also submitted that the case of McLeod v. McNab (1891) A.C. 471 P.C. was instructive on some of the questions raised in the appeal. The latter case was an appeal from Nova Scotia to the Privy Council. The unanimous decision was delivered by Lord Hannen who stated at page 474: It has been decided in many cases that the intention must

7 7 be found in the instrument itself; and it may be taken that the recent decisions have established that a mere reference to the document intended to be dealt with, whether will or codicil, by its date, is not sufficient in itself. The date is an important element in the consideration, but it is not to be taken by itself; it becomes necessary to look to the context. and to anything else in the document which may explain whether the intention of the testator was to confine the action of the testamentary disposition under consideration to the document of that date. or to extend it to something more." (Emphasis added) When the question is understood as stated by Lord Hannen, any difficulty of interpretation of the codicil is resolved. The second codicil refers to the will of December 8, 1989 which is the date of the will of the deceased. This codicil, how-ever, deals with matters which are not mentioned in the will and which we argued should be given effect. It was argued that Lord Hannen would, on his reasoning, give effect to the second codicil and would "confine the action of the testamentary disposition under consideration to the document of that date". My client submitted that extrinsic evidence would show that the testator and his wife, who drafted the second codicil, had no knowledge that the will had been revoked. Lord Hannen states on page 475, of the above referenced case, that the word "confirm is an apt word, and has the meaning, and the operation of the word 'revive' which is used in the statute". It was pointed out that the word confirm is not found in the second codicil. The McLeod case was followed by the Supreme Court of Canada in MacDonnell v. Purcell 23 SCR page 101 where at page 115 Gwynne, J. states that the cases of In the Goods of Steele and In The Goods of Turner should be followed.

8 8 He says: I think that the judgments in the cases of In the Goods of Steele (1)' and In the Goods of Turner (2), the latter being decided in 1891, are the nearest to the present case, and which we should follow. Placing ourselves then in the position in which the testator was when he executed the codicil in question, it is to my mind inconceivable that the testator could have contemplated by that codicil and the language used therein that he was expressing an intention to revoke the will of January 7th, 1891, which he had had prepared with so much deliberation, and revive in the stead that of May 1890, which with like deliberation he had expressly revoked and annulled; utterly inconceivable, if his intention had been to revoke the one and revive the other, that no words expressing such intention should have been inserted. John Bergin, who drew the codicil, had no knowledge of the existence of the will of January 1891, or of any will but that of May He had no instructions to prepare a codicil which should have the effect of revoking the will of January 7th, 1891, and of reviving that of May When he drew the codicil he believed, although erroneously, the will of May 1890 to be in full force and effect as the testator's last will and testament and that Stuart was still one of the executors of such will. He, therefore, when preparing the codicil never intended to prepare one which should have the effect of reviving a will which he believed to be in full force and effect in law and in fact. The language which he used in the codicil is, therefore, naturally quite in accord with his belief as to then continuing and existing validity in law and in fact of the will to which he was preparing a codicil." In the present case, the above words were very apt when understood in the context of the facts before the Court. It was inconceivable that Hugh could have contemplated, by the codicil of the 4th of April 1992 and the language used therein, that he was expressing an intention to revoke the effect of his marriage of the 3rd day of April The evidence of his widow was that she had no knowledge of the effect of the marriage. She had no instruction which would have the effect of revoking the effect of the marriage and of reviving the will. When she drew the COdicil, she believed, although erroneously, the will to be in full force and effect. She, therefore, when preparing the codicil, never intended to prepare one which should have the effect of reviving a will which she believed to be in full force and effect in law and in fact. The language which she used in the second codicil is, therefore,

9 9 quite naturally in accord with her belief as to the continuing and existing validity in law and in fact of the will to which she was preparing a codicil. My client submitted that the second codicil must show on it's face sufficient intention to revive. If the second codicil does not have the requisit intention on it's face, that is the end of the matter. The will is not revived. It was further submitted that, as the second codicil was the only document to be properly executed after the marriage, that it was the only testamentary document that should be admitted to probate. SECOND ISSUE Should the Court require that external evidence be admitted. The Canadian Law of Wills states at page 119: "Although no external evidence of a direct nature is admissible to construe the testator's intention, evidence of the surrounding circumstances or indirect evidence of intention is admissible, just as it is to construe the question of an intention to revoke the subsequent document, or indeed, any question of the testator's intention with regard to his will." My client submitted a number of Affidavits concerning the surrounding circumstances of the testator. These Affidavits clearly showed that the testator had no knowledge of the effect of Section 17 of the Wills Act which revokes all wills made prior to marriage with some exceptions. In effect, the Respondent admitted this fact because they argued that: "It is submitted that while the testator was apparently unaware of the revocation of the will by marriage, his actions in executing the codicil, referring to the will by date, and referring to "my wife Lulu" in the codicil all show an intention to confirm the contents of the will of December 8, 1989." All of the cases cited, including In the Estate of Davis 1952 (2) ALL ER 509, heard external evidence. The headnote of Davis states: "evidence was

10 10 admissable of the surrounding circumstances, e.g. of a conversation between the testator and a witness who advised the testator that his marriage had revoked his will made prior to his marriage. In the present case, there is no evidence that the testator knew that his marriage had revoked the will of December 8, Indeed, the evidence is to the opposite effect. Nevertheless, the Respondent and Justice Bateman relied upon Davis. It was argued that to extend the Davis rationale to the present case would be extremely dangerous and inappropriate in the present day circumstances where many families have multiple marriages. Wilmer J. states at page 509 of Davis that: "the question I have to determine is whether this codicil of May, 1943, shows an intention to revive the will. Only so can I admit the documents to Probate. (Emphasis added) Wilmer J. continues on page 510: "The question remains whether it can be said that there is some expression conveying to the mind of the Court with reasonable certainty the existence of an intention to revive the will. To say that the intention must appear on the face of the codicil does not mean that evidence of surrounding circumstances is not admissible. That is made clear in another part of the judgment in the case to which I have just referred. Evidence would clearly be admissible in the present case to identify Ethel Phoebe Horsley, and also of the fact that a marriage had taken place between her and the testator. I am, however, invited to go further and to admit and give effect to the evidence of a sister of Miss Horsley who says that shortly before the time when the purported codicil was executed she had had a discussion with the testator in the course of which she pointed out that the effect of his marriage was to revoke the will. It seems to me that that is one of the surrounding circumstances which I am entitled to take into consideration when I approach the task of construing the words of the purported codicil to decide whether or not they show an intention to revive the will." Wilmer J. considered that he could hear evidence of the surrounding

11 circumstances which he was entitled to take into consideration. At page 510: 1 1 "I am baffled when I try to think what other intent ion the deceased could possibly have had except to revive the will. It appears to me that the words ought to be construed, if they legitimately and fairly can be construed, so as to have some effect, and the only effect I can give them is that of making the will effective." My client argued that the words of the so called codicil in Davis are Simply a statement of fact. The words are not directive, nor do they dispose of any portion of the Davis estate. The only safe way of dealing with the Davis case is to treat it as a case that was decided on its own facts. It was argued that the Davis case could more properly be seen as a case where the testator had been informed that his will was revoked and that wishing to make his will an effective will, tried to do so by Signing the envelope containing the will and having it properly witnessed. It is undoubtedly true that if the testator had properly re-executed the will itself, the case would never have been reported. My client's position was that the wording of the second codicil was clear in that it dealt with automobiles. It disposes of automobiles. Lulu wrote the codicil to deal with automobiles. To give it any other effect is to go far beyond the explicit intent of the words that are in the codicil. My client argued that to follow the Davis case in the circumstances under consideration would have been dangerous, especially when the facts of Davis as to the knowledge of the testator are the reverse of the facts in the present case. THIRD ISSUE marriage. Does Public Policy require that the Court not revive a will revoked by

12 12 My client argued that Public Policy in our present social context required that the Court be extremely careful in reviving any will which was revoked by marriage. This is particularly so in the case where the marriage is a second marriage of the testator and where the testator has children by a former marriage. To allow a will which has been revoked by marriage to be revived under the circumstances existing in the present case would be extremely dangerous. It seems abundantly clear that there are inherent dangers should such a will be revived without the testator showing an extremely clear, precise intent to do so. The position of the second spouse would always be open to attack where such a will predates the second marriage. The revival of such a will might invite many instances of litigation, or worse, between the children of the deceased by his former marriage and the second spouse. This issue has been discussed at length in a Report on Intestate Succession by the Manitoba Law Reform Commission. The legislation in Nova Scotia and Manitoba are similar and would have the same inherent difficulites in any case similar in fact to the present case. The Intestate Succession Act C.236 RSNS 1989 provides a fair and equitable division of a de'ceased's possessions between the spouse and his issue. The commentary given in the Manitoba Report commencing at page 16 is a balanced view of the positions and needs of the second spouse and the children of the first marriage. The law in Nova Scotia and the suggestions of the Manitoba Law Reform Commission are in accord. Section 4(2) of the Intestate Succession Act provides for a $50,000 preferential share to the surviving spouse. Public Policy requires that the Court not be hasty in reviving wills which have been revoked by marriage. This Public Policy argument is even stronger where the marrtdge is a second marriage.

13 13 LIST OF CASE AUTHORITIES 1. In the Goods of Steele, (1) Law Rep. 1 P. & D McLeod v. McNab, (1891) A.C. 471 P.C. 3. MacDonnel v. Purcell, 1894, 23 SCR In the Estate of Davis 1952 (2) ALL ER 509 TEXT REFERRED TO 1. Thomas G. Feeney, The Canadian Law of Wills, Vol. 1: Probate (2nd Ed.) 2. Manitoba Law Reform Commission, Report on Intestate Succession, March 25, 1985, Report #61