Probate

It seems self evident and almost trite to say that a will must reflect the intention of the testator.  Accordingly, those parties who come to court and submit that the will in question is authentic and valid must prove, among other things that the Testator knew and approved of the content of the will.[1]  Mistakes in how instructions are taken and the execution of the will may result in disappointed beneficiaries and liability to the solicitors who took the instructions, drafted the Will and saw to its execution.  The purpose of this paper is to:

1. examine how courts have dealt with the issue of knowledge and approval of contents as it relates to non English speaking testators;
2. reflect on the risks to having the will declared invalid; and
3. address the issue of potential liability to disappointed beneficiaries and consider the wisdom of certain practices when dealing with such testators.

A careful review of the court’s treatment of these issues may give solicitors reason to reexamine and adjust their will drafting practices.

What is Knowledge And Approval of Contents

In Lidstone v McWilliams[2], the Supreme Court of Canada stated that:

“…The propounder of a will must satisfactorily establish (a) that the testator had testamentary capacity at the date of the execution of the will; (b) that the will had been duly executed and attested, and (c) that the testator knew and approved of the contents thereof.”

The Supreme Court of Prince Edward Island[3]  described the obligation of knowledge and approval as follows:

“For knowledge and approval it must be proven that the testator knew and approved of the contents of the will, that the testator realized what is in the will and agreed that is what she wanted. Once the propounder proves that the will was properly executed after it was read to or by the testator and the testator appeared to understand it, the propounder is aided by a rebuttable presumption that the testator knew and approved the contents. The presumption is rebutted if it is shown that the testator did not really understand the contents even though it was so read. When suspicious circumstances are shown, the propounder must show knowledge and approval affirmatively, or depending on the circumstances probate may be refused for all or part of the will: Oosterhoof on wills and Succession (5th ed.), at pp. 168-169; Feeney’s Canadian Law of Wills (4th ed.), at § 3.1.”

It is important to note that knowledge and approval may overlap with issues relating to capacity or undue influence, but they are not the same thing.  One may understand and approve of a aill, but still not possess the testamentary capacity either because the decisions contained therein are rooted in delusions or a result of disease or forgetfulness.[4]  Furthermore, a testator may know and understand the contents of a will, but has been coerced to sign because of undue influence which goes to capacity.[5]

In Vout v Hay[6]  the Supreme Court of Canada indicated that while the propounder of the will has the legal burden to show due execution, knowledge and approval, and testamentary capacity, once there is evidence of due execution and of the will having been read over to the testator, who appeared to understand it, a rebuttable presumption exists that the testator knew and approved of the contents of the will.  The Court further went on to explain that this presumption of knowledge of form and content is rebutted where there are suspicious circumstances present.  At that time those seeking to establish that the will is authentic reassume the legal burden of proving knowledge and approval.

Suspect English and Suspicious Circumstances

Does the inability of the testator to read or write English constitute suspicious circumstances?  In certain circumstances the courts have concluded that the testator’s inability to read or speak English gives rise to suspicious circumstances.  Let’s review the case law.  In Re Sopel[7]  an elderly woman could neither read nor write English, but knew the language well enough to understand what was being said to her in English.  The testatrix executed a will, the prime beneficiary of which was the wife of the lawyer who drafted and facilitated its execution.  The application for probate was rejected, in part, because the will was not read to the testatrix and the court concluded that she did not know or approve of the contents of the will.   While it was in dissent, one of the judges made the following comment that impacts on our discussion:

“Mrs. Sopel was in the position of a marksman or blind person. It was the duty of the appellant to advise her that it was necessary that it be read over to her in the presence of the witnesses. Considering the bequest to his wife, the fact that he did not so advise her gives rise to suspicion.”

In the Schatz Estate case, [8] the testatrix was a woman whose native tongue was German.  She was not comfortable speaking English and could neither read nor write.  The testatrix’s daughters (and beneficiaries under the will) reviewed the will with their mother and summarized its contents to her in German.  The Court referred to the Saskatchawan Surrogate Court Act which required that the due execution of a will for an illiterate person required that the will was read over to the testator.  The Court also noted comparable practice in Ontario and quoted MacDoneel, Sheard and Hull which stated:

“When the testator has executed his will by making his mark, the proof shall show that before its execution the will was read over to him and that he had knowledge of its contents and appeared perfectly to understand the same.  This rule does not mean that if the will has not been read over to such a testator it can never be proved, but only that it cannot be proved in common form.  The will could still be propounded in solemn form, and if it was established that the testator had a clear knowledge of its contents it would be entitled to probate.”

In the Schatz Estate case, the court considered what “read over” meant in this context.  Its relevance to our discussion bears it being quoted in full.

5.      There is something to be said for reading the words “read over to” in a wide sense to include “summarized to”, “explained to” and the      like.  In fact, one dictionary definition is “to cause another to become acquainted with the contents of something written”.  If narrowly interpreted, petitions which really involve only non-contentious business may come to involve proof in solemn form.  Moreover, those involved in the execution of wills know that, in fact, wills are, in circumstances involving execution by mark, often summarized or explained rather than read over word for word, the latter being, in many situations, a futile exercise. Putting this thought into terms of the present petition it may be said:

Does this lead to a wide and flexible interpretation of the words “read over” as a practical step?

6.      I think, as seems to be suggested in Probate Practice, supra, that the words “read over” mean exactly what they say.  If a broad and flexible interpretation were accepted, witnesses to the execution of wills executed by mark would soon be swearing that the will had been “read over” in various broad and flexible senses and all that would be coming before a surrogate or probate judge would be the affidavit in statutory form provided by section 38(2).  There would be no question by the surrogate or probate judge — the statutory requirement would have technically been met.  The decision would be for the petitioner and his solicitor whether the circumstances of the execution and explanation or summarization justified the swearing of the affidavit in statutory form.  The words would eventually come to mean different things to different people.

7.      In result, in my view, it is better that the words “read over” be regarded as meaning read over verbatim and not be equated with “summarized”, “explained” or “made acquainted with”.  If the words “read over” are to routinely appear in affidavits in support of common form petitions for grants of probate, it is best, and the legislature must have so intended, that the words have the usual and restricted meaning.  If it were otherwise it would be for an individual deponent to use the words as he sees fit.  While a layman may be able to “explain” or “summarize” this will adequately, it will not always be so.  Errors — intentional and nonintentional — are certain.  There are not that many cases of testators executing by mark without the will having been read over.  Solicitors rarely omit reading over and they supervise most executions by mark.  Executions by mark are unusual with lay people.  Proof in solemn form need not be, in non-contentious cases, overly formal or lengthy.  In the present case my present inclination is that little will be required to prove the will of the testatrix in solemn form.

In a 1999 Alberta Surrogate Court case[9] the validity of the will was attacked.  The testator’s English skills were virtually non-existent and the interpreter for both the providing instructions and reading of the will was a non-arm’s length party to the beneficiary. The court concluded,

“The problem in this case is that the deceased had little or no ability with the English language. His interpreter was a loyal supporter of the beneficiaries named in the will. I am not sufficiently satisfied that the deceased understood how he was disposing of his property in order to be able to hold, in good conscience, that in this case there was a proper testamentary disposition.”

In the 1994 Sguigna Estate case before the Ontario Court of Justice – General Division[10] the testratix could not read or write English and had only very basic verbal English skills.  The court opined that her inability to communicate in English directly related to her lacking knowledge and approval of the contents of the will.    The Court quoted the principle stated in Tyrrell v. Painton et al.,[11] by Davey L.J. as follows:

“the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless the suspicion is removed.”

The lawyer taking instructions spoke to the testator in Italian.  However, the lawyer was from the north of Italy and the testator was from the south. They spoke different dialects so that while the lawyer could understand the testator, the testator was unable to completely understand the lawyer.  The son of the testator, who was the prime beneficiary under the will, picked up the copy of the will and presented it to his mother for signature before two witnesses (who also did not speak English).  The court rendered the following decision.

“I am satisfied from this evidence that Annetta [the testator] was presented with a document which was entirely in English, which she could not read, and which Fred confirms he did not read to her. Nor did he explain to her its contents. I find that it was witnessed by two persons who did not know what was in the document and who cannot testify to the formalities for execution required under the Succession Law Reform Act. On those grounds and on that evidence alone I find that Fred, as the person offering the will for probate, has failed to meet the onus of proving due execution and knowledge and approval of the contents of the will by the testratrix. Accordingly this will shall not be admitted to probate.”

Clearly this case indicates that when a testator does not speak English, it can give rise to suspicious circumstances which rebuts the presumption that the testator had knowledge and content of the will. Claims of solicitor’s negligence may arise if those who propound the will fail to prove it authentic and are unable to establish that the testator knew and approved of the content of the will.  For those with non English speaking clients this issue suggests that one would be wise to review the manner of taking instructions and seeing to the execution of a will.

Of particular interest to me is paragraph 31 of Haley J.’s decision, “It is not sufficient in establishing the knowledge and approval of the contents of the will by the testatrix to show that she understood the primary dispositive feature of the will. While she may not understand the technical law relating to powers of executors and priority in payment of debts it is essential that she understand the complete chain of the dispositive provisions, e.g., gifts over.”   Often lawyers dealing with unsophisticated illiterate clients only deal with the main points in the will in a very summary fashion.  Is that enough?  For Justice Haley the answer seems to be no.

Dealing With Testator Who Cannot Read, Speak or Understand English

Solicitors who do not take proper steps to ensure that the will properly reflects the testator’s instructions risk liability to disappointed beneficiaries.  In discussing the issue of solicitors’ liability in negligence cases, Ontario’s Court of Appeal[12] referred to M.M. Litman & G.B. Robertson G.B. article on “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity”. [13]  The Court states:

“….The authors then identify solicitors’ common errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a will. These include:

•     the failure to ascertain the existence of suspicious circumstances,

•     the failure to react properly to the existence of suspicious circumstances,

•     the failure to provide proper interview conditions (e.g., the failure to exclude the presence of an interested party),”

So what is the best way to deal with a testator whose English skills are so suspect such that those who oppose a will may use that deficiency in the English language to challenge the will?

In preparation for this paper I have reviewed a number of the checklists, text books and cases relating to this issue and will review some of the options presently in use by solicitors and recommended by different authorities.

The Client’s English is good enough……

There are some solicitors who feel quite capable of communicating with a testator whose English is suspect either because the testator’s will is a simple one or they are persuaded that the testator’s English is good enough to understand the explanation given.  Some cases suggest that regardless of a testator’s suspect English skills, a will should be probated if the solicitor satisfies the court that he sufficiently explained the will so that the testator had knowledge and approved of the will’s Content. [14]

On the other hand, there is case law that says the exact opposite.  In the case of the Dansereau Estate[15] the testator was bilingual in matters of everyday living, but her first language was French.  She felt more comfortable speaking French when dealing with complicated or sensitive issues.  Therefore even when the will was reviewed and explained to her by a senior estate lawyer, the court found that the testator did not have the requisite knowledge and approval of the will because the lawyer seeing to its execution was unable to explain in French the documents that he presented to her for execution.

Clearly, the court’s decisions will always turn on facts specific to each case.  However, the best practice is to ensure that the manner of a will’s execution leaves little room for doubt and that the testator’s knowledge and approval of the will can later be proven in court.

Someone in my office speaks……

A common practice for people working with ethnic communities is to hire administrative staff who speak the language.  As well, lawyers sometimes work in their own ethnic communities and use their supplementary languages skills as a marketing feature.  Under these circumstances the courts have often approved of lawyers who read over and explain the will to testators in their own language[16] and the various law society and text book checklists often recommend referring such a testator to someone who speaks the testator’s language in order to avoid the allegation of suspicious circumstances.[17]

Unless the person in the law office has a proper command of both the English language and the language of the testator there is the risk that the will cannot be probated and the solicitor who took the instructions and saw to its execution risks liability to disappointed beneficiaries.  The courts have looked askance at wills when the comprehension of the testator was put into question because the lawyer and client spoke Italian of different dialects.[18]  Each case will turn on its facts, but common sense dictates that if either the testator’s or translator’s language skills are not sophisticated enough to accurately communicate the contents of the will the risk of the will being overturned and liability to the solicitor is enhanced.[19]

Testator’s Friend acts as Interpreter

The testator brought in a friend and makes it clear in broken English that this friend will translate on his behalf.  The friend translates the instructions and reads over the will and summarizes it for the plaintiff.

This practice poses a number of difficulties.  Unless the solicitor is familiar with the client and his friend it is difficult to independently determine the testator’s intentions, capacity and knowledge of the content of the will.  In Re Vleeming Estate[20]  the testator knew no English.  He brought in a friend to act as translator who, unbeknownst to the solicitor who drafted the will, was a loyal supporter of the beneficiaries named in the will.  The court ruled that this was not a proper testamentary disposition.

In his book, W. A. McIntyre rejects this option because “doubt will remain as to the competence and objectivity of the interpreter.”[21]

Employ A Certified Interpreter – The Gold Standard

The Law Society of British Columbia recommends, “As for the testator whose first language is other than English, the wisest course, if the solicitor does not speak the client’s first language, is either to send the client to a solicitor who does speak that language, or if that is not possible, to employ an interpreter.”[22]  One author suggests that the solicitor should retain an independent professional interpreter who will certify that the will was fully and fairly translated to the testator.[23]

Two objections have been raised with respect to this solution.   Some suggest it raises the bar too high and that the additional costs make it impractical.  Adding an additional $150 will price the solicitor’s services out of the market.

Despite these objections, McIntyre’s suggestions seem like the best way for a solicitor to ensure that the propounders of the will can later prove that the testator possessed knowledge and content of the will.   The fact that this practice may be more than is usually necessary should not dissuade those considering its uses.  An independent interpreter’s certification kept on file will further limit will challenges and reduce the chance of accusations of negligence.

The concern that using a translator makes the drafting of simple wills cost prohibitive is a concern.  However, for many who practice in this area it is rare that a solicitor ever recovers his/her usual hourly rate for the preparation of a simple will.  They are drafted in any event because the solicitor anticipates additional revenue streams from the fees associated with acting for the estate upon the testator’s demise.  If that is the case the additional costs are a low price to pay.

One final comment. This article is intended to help those involved in the estate planning process to be familiarized with some of the issues relating to the requirement that a testator have knowledge and approval of the contents of his or her will.  It is not a substitute for lawyers’ own research and analysis.  It is not intended to provide substantive legal advice nor opinions.