Canadian Wills and Estates

While some may think that wills and estates might be a dull and dry area of law, there are many examples of a testator (the person making the gifts of property) drafting a testamentary document which clearly departs from the ordinary and mundane.

In some cases, a testator not only has left items to particular individuals, but has, rather sarcastically, indicated the reason behind the gift.

Naturally, in this day of lawyers drafting these documents, the more colorful testaments are less common.






Two testamentary documents in particular stand out to me, one because of the medium on which it was written, and the other because of its peculiar contents.


No. 1: George Harris

The first is the testament of George Harris, a farmer who, on June 8, 1948, suffered the unfortunate but all-too-common fate (in those days) of being pinned beneath his tractor. He was bleeding profusely, but was conscious, and his hands were free.

Tractor in field.
Creative Commons, Wikimedia Commons

He was found approximately nine hours after the incident occurred, and taken to hospital, where he later succumbed to his injuries.

A few days later, someone investigating the accident scene happened to notice something odd about the underside of the fender. Looking closer, he saw that there was something scratched onto the surface. It read:

In case I die in this mess, I leave all to the wife.

– Cecil George Harris.

The bumper was removed, and presented to the appropriate authorities as George Harris’ last will and testament. The writing on the bumper was accepted as a valid holograph (handwritten) testamentary document, and was admitted to probate.

So, among the various paper documents, files, and file folders containing estate documents in that jurisdiction, there is a tractor fender – the only one, at least in that jurisdiction, upon which a testamentary document was written! I wonder how they store it!


No. 2: Charles Vance Millar

The second, which I recall studying in law school, was that of Charles Vance Millar, a Toronto corporate lawyer with a hand in many different entrepreneurial schemes and a stock portfolio which included shares in the O’Keefe brewery and in at least two horse-race gambling houses.

Known for a quirky sense of humour, pranks, and practical jokes, as well as for his belief in the maxim, “every man has his price”, he began his document as follows:


This will is necessarily uncommon and capricious, because I have no dependents or near relations, and no duty rests upon me to leave any property at my death, and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.


Millar died in 1926, a bachelor without children. Among the bequests (i.e., the gifts of property) he made were the following:

  • Brewery stock, to a number of Protestant ministers in Toronto, who had been preaching about the evils of liquor;
  • Very lucrative Ontario Jockey Club shares, to men who were outspoken opponents of gambling;
  • Kenilworth Jockey Club shares, to every Protestant minister in Walkerville, Sandwich, and Windsor; and
  • Shares in Catholic-owned O’Keefe’s brewery, to every Orange Lodge (which was, by definition, anti-Catholic!) He also left some of these shares to a Protestant minister who was known to have spoken many times about the "demon drink" in Toronto.
  • His West Indian vacation home, to three of his lawyer friends, who got along fine with Millar, but were at loggerheads with each other. However, as it turned out, Millar had sold the property before he died.

The press, naturally, had a field-day with those bequests. Beneficiaries were repeatedly asked whether they were going to accept the gifts. Would basic human greed overtake the principles by which these men had lived their lives?

The most famous - or perhaps infamous? - of all the bequests, however, was the following paragraph:


All the rest and residue of my property wheresoever situate I give, devise and bequeath unto my Executors and Trustees named below in trust to convert into money as they deem advisable, and invest all the money until the expiration of nine years from my death, and then call in and convert it all into money and at the expiration of ten years from my death to give it and its accumulations to the Mother who has since my death given birth in Toronto to the greatest number of children, as shown by the registrations under the Vital Statistics Act. If one or more mothers have equal highest number of registrations under the said Act, to divide the said moneys and accumulations equally between them.


Naturally, this raised many legal questions: Was this clause void, as being against public policy? (That is, would such a contest induce already struggling families to produce even more mouths to feed, in the hopes of winning the contest?) Would ‘children’ include illegitimate children, as well as those born within marriage? What about stillborn children, would they be counted? What constituted 'in Toronto'?

Wikimedia Commons
Stork with newborn

Many of those questions, as well as challenges to the document itself by a number of first cousins in various parts of North America, who got wind of its existence through the extensive newspaper coverage, ended up in the Supreme Court of Canada. The document ocwas found to be valid. What the newspapers dubbed “The Stork Derby” was on!

At the end of the 10-year period, four women shared the ‘prize’, each of them having given birth to 9 live children within marriage during that time period. Those four families each received $125,000.

Two other women each received $12,500 – one who had borne five sets of twins, some of whom were illegitimate; and another who had birthed ten children during the relevant period, two of whom were stillborn. The latter two women were provided these funds in exchange for a release of any further claims against the estate.

This is a clear example of a well-written testamentary document, meeting all of the legal requirements, and embodying the writer’s quirky sense of humor, however strange the contents might be.

It resulted in a legal and press ‘circus’ which the write undoubtedly envisioned as flowing from such a document! In death, he clearly had ‘the last laugh’!


A Short Historical Outline

Having looked at some of the more entertaining (or perhaps 'controversial' would be a better term!) aspects of at least one Canadian testamentary document, let’s look at a bit of the historical context of the passing of property from one generation to the next.

In all provinces except Quebec, Canadian law with respect to wills and estates is very similar to that in England, since it is rooted in 12th century British common law.

Although Canada became a nation in 1867, it was not until the 1931 Statute of Westminster that Canada had control over its own legal and foreign affairs. Until that time, all Canadian statutes had to be in accordance with British laws.

British laws, and any changes to them, therefore, have had a direct impact on Canadian law (except in Quebec!) until fairly recently. Naturally, this applies with respect to this area of law, as well as all others.

While there are some differences from province to province, the laws are sufficiently similar that it is not necessary to provide a separate page for each province – with the exception of Quebec.

In the province of Quebec, the law is based on the French Napoleonic Code and the civil law.


A Little Terminology

A person could die with a will (testate) or without a will (intestate). If there was a testamentary document, but it was found to be invalid, and no earlier wills were available, the person would be considered to have died intestate.

Where there was a valid testament, the executor would apply to the court for Letters Probate, which granted him or her the legal right to deal with the deceased's property, in accordance with the testator's instructions.

When a person died intestate, upon application, the court would appoint someone – usually a member of the family – to deal with the deceased's property. This was done by way of Letters of Administration.

In either case, a number of documents were generated in connection with the disposal of the deceased’s property, which should be in the estate file. Many of these documents may prove to be of interest, from a genealogical perspective.

Queen Isabella Dictates Her Last Will and Testament.
Eduardo Rosales, Spain, 1864.
Public Domain, Wikimedia Commons


Intestacy and the Laws of Succession

When a person died intestate, the British ‘laws of succession’ were used to determine who would inherit the estate.

These rules established the order in which various blood relations of the deceased would be considered for an inheritance.

Once a beneficiary (or a group of beneficiaries) was found, all those further down on the list were eliminated. The order in which heirs were sought was as follows:

  • Spouse
  • Children
  • Grandchildren
  • Great-grandchildren
  • Parent(s)
  • Siblings
  • Grandparents
  • Uncles, aunts, nephews, nieces
  • Great-nephews/nieces, cousins

Where there are no living spouse or descendants, and the parents, siblings, and grandparents all have passed away, it becomes necessary to look for more distant relatives.

Presumably, this was the situation in Charles Millar's case. That is, we know that he had no spouse, and no direct descendants. It must have been the case that his parents had passed away, as had any siblings and grandparents, and uncles or aunts.

Otherwise, the first cousins who challenged the will would not have had a claim against the estate, if they had been successful in their challenge, and Millar was therefore found to have died intestate.

This is the field in which “heir hunters” work. Also known as forensic genealogists, these individuals look for heirs to an intestate individual’s estate.

Forensic genealogists specialize in finding the nearest living ‘next of kin’, by tracing the deceased person's genealogy and collateral lines and then moving down the lines into the present, in accordance with the above laws of succession, finding the closest living relative(s), and advising the unsuspecting person(s) of their entitlement to all, or a portion, of the estate.



Wills and ‘The Fairer Sex’

Up until 1837, the law considered that when a man and woman married, their identities merged. A married woman, therefore, had no identity separate from that of her husband.

If she brought lands and property into the marriage, they passed to her husband, and became his property. There was no need for her to dispose of property, as all property in the family unit belonged to the husband.

Unmarried women and widows, on the other hand, did have property to dispose of. A widow’s testamentary document, however, was subject to the provisions in her deceased husband’s will, and could not contravene or override it.

Generally, this became an issue with respect to ‘life estates’, in which a husband might grant his wife a ‘life interest’ in the family property, meaning the right to live in the home (if that was specified) and use the family property for her lifetime. Upon her death, the property was to be disposed of in accordance with his will.




Cameo - Barbara Radziwill.
Wikimedia Commons
Caraglio Cameo of Barbara Radziwill

Life interests were not limited only to married women. I know of one case in which a testator, knowing that his son was unable to handle money, provided that his son was to have a life interest in the family farm.

On the son’s death, the property was to pass to the testator's grandson, who from an early age had demonstrated that he was level-headed and responsible. Subsequent events proved the wisdom of this approach!

The only exception to the inability of a married woman to make a will was in circumstances where they were named as executors.

This was a practicality, as it provided for the appointment of a substitute executor, in the event that the executrix died before she had completed distributing the property. It avoided the costs of having to apply to the court for further representation.


Changes to the Ability of Married Women to Hold and Dispose of Property

Beginning in 1837, the rights of a married woman to own property on her own accord, and to dispose of it as she saw fit, began to expand, as follows:

  • Under the Wills Act of 1837, a married woman gained the right to make a will, provided her husband gave his consent.
  • The laws again expanded a woman's rights in this regard in 1859. As of May 4, 1859, women acquired the right to make a will to dispose of their own property, whether it was real estate or personal effects, separate from their husbands, regardless of whether it was obtained before or during her marriage. However, this was done by the imposition of a trust.

    A woman could give property to her children, but all of the children had to receive an equal portion.

  • In 1884, married women gained the same right as a single woman or a widow to acquire, retain, and sell property on her own account, without her husband’s consent, and without a trustee involved.



Prior to 1837, therefore, if a female ancestor died before her husband in Canada, you will not find a testamentary document in her name.

From 1837 and on, testamentary documents made by married women became more and more common as time passed.


Battleford, SK Courthouse, built 1907.
Wikimedia Commons


Locating a Will

The cardinal rule in looking for a testamentary document is to ASK THE FAMILY MEMBERS if they have a copy, before looking anywhere else. It may very well be that a copy was kept among the family papers, or that the person who handled the estate has a copy, or knows where it is located.

If no-one in the family can locate a copy, you will need to determine, at the very least, the date of death; where the deceased was living at the time of death; and whether s/he owned property in two or more jurisdictions, before beginning your search.

This information will assist in narrowing the possible location of the document. Wills that were probated (proven to be valid) within the last 40 years or so (the exact time period depends on the province - see the list below) may be located at the local courthouse, or at the court office.

Those probated earlier than that most likely will be located in the provincial archives. They may be available on microfilm, and/or by inter-library loan.

Also, in the 1800s, in some of the provinces, testamentary documents, agreements of purchase and sale of land, bankruptcies, and other legal documents all were deposited in the local Land Registry office.

If that is the case, it should be relatively easy to find the document, as name indexes were created for all of these instruments.

Many provinces kept a register for wills, which, where it exists, has been indexed. The registers contain the most important bequests (gifts to specific people or institutions), but not necessarily the entire contents; probate grants; and/or letters of administration. While it is unlikely that the register would provide a date of death, it can be helpful in providing a file number.


Ontario Archives Building
Wikimedia Commons

Other places to look for testamentary documents include the following:

  • Check your local library. Many local genealogy groups have indexed probate records for their community. This is also a good source for determining where a will may be located.
  • In earlier days, local newspapers used to report on all of the happenings in the town. You may find a report regarding a person’s will and its contents.
  • Even today, legal notices are filed in the local newspaper stating that an individual has passed away, and asking that all persons with a claim against the estate make themselves known. These notices state the date of death. They may also indicate where and when the will was to be probated.
  • Testamentary documents often were used to convey property from one generation to the next. In some provinces, it was not legally necessary, in the early days, to register the change of ownership with the government, so long as the new owners had a copy of the will granting them title to the property. Nevertheless, sometimes wills were registered against a property in these circumstances.

    Also, the testamentary document transferring title to the property may be registered years later, when the beneficiary (the person who inherited the property under the will) sells it. The Land Titles office therefore might be another place to look.


Provincial Differences in Storage and Handling Wills and Estate Files

As there are some differences in the way that the provinces handle these documents, in terms of their storage and location, the following list provides the most likely locations of wills and administered estate records:




(a) Alberta - Jurisdiction to handle wills and estates began in 1906, one year after the province joined Confederation. The Surrogate Court began in 1967.

Inquiries should be addressed to:

Succession Duty Dept.
Public Trustee’s Office
10365-97 Street
Edmonton, AB
T5J 3Z8



(b) British Columbia - jurisdiction was granted in 1867.

For wills and estates up to 1981 (i.e., more than 30 years old), contact the BC Archives, at

BC Archives
PO Box 9419,
Stn. PROV GOVT
Victoria, BC
V8W 9V1

For documents and files from 1982 (i.e., less than 30 years old) to the present, contact:

The Court Registry,
Min. of the Attorney General
850 Burdett, Room 205
Victoria, BC
V8W 1B4



(c) Manitoba - Jurisdiction was granted in 1871.

In the rural courts, files are transferred to the Provincial Archives after 20 years.

In the Winnipeg courts, however, the files are transferred to the Archives after 60 years.

The Provincial Archives are located at:

Provincial Archives
200 Vaughan Street
Winnipeg, MB
R3C 1T5



(d) New Brunswick - Jurisdiction was granted in 1786, at which time the Court of Probate began operating.

All probate files, wills and letters of administration, and probate registers (indexed) are in the Provincial Archives.

The Archives are in the process of microfilming these documents. Those already microfilmed should be available for inter-library loan from the New Brunswick Provincial Archives.

Contact:

Provincial Archives
PO Box 6000
Fredericton, NB
E3B 5H1



(e) Newfoundland - Jurisdiction from 1833. All available records are found in the Supreme Court Registry Office:

Registry Office, Supreme Court
Duckworth St.
St. John's, NF
A1C 5V5



(f) Nova Scotia - Jurisdiction from 1758.

Records from 1758 to 1900 (i.e., more than 10 years old) are located in the Public Archives. They are on microfilm, and some have been indexed.

Public Archives
6016 University Avenue
Halifax, NS
B3H 1W4

Records from 1901 (up to 10 years old) to the present are located in the Probate Offices in each county.



(g) North West Territories - Jurisdiction from 1875.

All available records are located in the Supreme Court:

Supreme Court
PO Box 1320
Yellowknife, NWT
X1A 2L9



(h) Ontario - Jurisdiction granted in 1792.

For the years 1793 to 1858, files involving property in more than one district or county were handled by the Probate Courts. All other wills and estates were handled by the Surrogate Courts.

As of 1858, the Probate Court was abolished. All testamentary files from 1859 on were handled by the Surrogate Courts.

Any records more than 40 years old are located in the Ontario Archives:

The Archives of Ontario
134 Ian Macdonald Boulevard
Toronto, Ontario, Canada
M7A 2C5

Files less than 40 years old generally are located in the local courthouse in the district where your ancestor lived.

There are, however, a few exceptions. Some counties or districts have some files more than 40 years old.

The Archives has a province-wide index of wills and estates on microfilm, called the Surrogate Clerk Application Books, which can be borrowed through the inter-library loan system. This should assist in locating the particular file you are seeking.



(i) Prince Edward Island - Jurisdiction from 1773.

Records from 1807-1920 (i.e., more than 90 years old) are located in the Public Archives and Records Office:

Public Archives and Records Office
Hon. George Coles Building, 4th floor
175 Richmond Street
Charlottetown, PE

Records from 1921 to the Present (i.e., less than 90 years old) are located at the Probate Court, or its successor



(j) Saskatchewan - Jurisdiction began in 1906.

Records from 1907 and on are located in the Regina Court House:

Surrogate Clerk
Regina Court House
Surrogate Clerk
2428 Victoria Ave.
Regina, SK
S4P 3V7



(k) Yukon Territory – jurisdiction from 1898.

All records are located in the Yukon Archives:

Yukon Archives
PO Box 2703
Whitehorse, Yukon Territory
Y1A 2C6

Conclusions

I hope that this summary of Canadian wills and estates and where to find them proves helpful in the search for your ancestors’ estate documents.

And while it is unlikely that you will find wills that are quite as eccentric as the Millar will, if you should find any such documents which contain peculiarities, or which are somewhat different from the ‘norm’, please share their contents!






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