Recent changes to the Succession Law Reform Act[1] which came in through Ontario’s Bill 245, Accelerating Access to Justice took force and effect on Feb. 16, 2021.[2] However, it was nearly two years before a representative case was brought before Ontario courts. Earlier this year, I wrote about that unreported decision in an article which can be found here.
To briefly recap, section 4 [2] of the SLRA deals with the valid execution of a will and requires that a will is not valid unless it is signed by the testator (or someone else in his/her presence or direction), in the presence of two or more attesting witnesses at the same time and that two or more of the attesting witnesses also subscribe the will in the presence of the testator.[3]
Section 21.1(1), a validating provision, allows courts the discretion to declare a will valid and fully effective despite its non-compliance with the aforementioned section 4 [2].
In the February 1, 2023 decision in Grattan v. Grattan, an unsigned and unwitnessed draft will was declared valid and fully effective. Following this decision, three more decisions dealing with s. 21.1(1) were released by the Ontario Superior Court of Justice. All of these decisions were released in June and all were decided by the Honourable Mr. Justice FL Myers. The cases are as follows:
1) Cruz v. Public Guardian and Trustee[4]
In Cruz, the deceased had prepared his own will. The will was clearly drafted and clearly expressed the testamentary intentions of the deceased; however, the will was unsigned and unwitnessed.
In determining whether s. 21.1(1) could be utilized to validate this will, Myers J. looked to the British Columbia decision in Estate of Young[5] and was ultimately satisfied that the document in question “records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”[6] In determining that the will in question is valid and fully effective, Myers J. held that “[f]ixing this type of mistake is precisely what s. 21.1 seems to be for.”[7]
2) White v. White[8]
In White, section 21.1(1) was addressed but not plead after an applicant seeking directions to obtain access to the files of his late mother’s lawyer brought an application under Rule 75.06 (1) of the Rules of Civil Procedure.[9] The applicant, who was trying to consider whether he might mount a will challenge, was not objecting to the certificate of appointment of estate trustee.
In White, the Applicant’s counsel argued that the draft will being prepared might be an expression of the Applicant’s mother’s testamentary intention to revoke or alter her 2014 will and that if so, the court might recognize the draft will under s. 21.1(1) of the SLRA.
According to the Applicant, he engaged a lawyer in 2021 to help his mother update her will. As such, he emailed a lawyer on July 10, 2022 to book a consultation appointment. Several conversations took place over the ensuing weeks concerning the updating of his mother’s will. Between August 9 to 12, three emails were sent to the lawyer in an attempt to book an appointment to finalize the will. An appointment was set for August 16, 2022. On the morning of the appointment, the deceased suffered a stroke and was hospitalized. The lawyer attended the hospital for formal execution but the mother was unable to sign. She died six days later on August 22, 2022.
Myers J. was dubious that s. 21.1(1) could apply on these facts and noted that the email on August 16, 2022 between the lawyer and the deceased only referenced that she wanted to have a telephone conversation with the deceased. His Honour did not believe this sounded like a will was ready to be signed.
Notwithstanding the aforementioned, in White, Myers J. looked at the decision in Estate of Young, for the need for a court-ordered will to record “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”[10] Myers J. held that “It is hard to see how a draft will can meet that threshold.”[11] Importantly, it was also noted by the court that because this was not an application under s. 21.1(1), His Honour did not need to decide if the new unsigned, unreviewed, draft will or the solicitor’s notes are an effective will-equivalent.
The endorsement of Myers J. in White included some thoughts for consideration on the development of the law. Particularly, His Honour questioned whether section 9 of the Estates Act[12], a section designed to help beneficiaries find and obtain a deceased person’s will, could apply as well to a document that one hopes might qualify as a will-equivalent under s. 21.1.[13] His Honour later went on to say that the availability of a pre-lawsuit discovery order requires an argument based on research and that, “in light of the novelty of s. 21.1, the relief requested may have a far broader reach than just this case.”[14] The Applicant was urged to return to a case conference to propose a process to have this matter heard with researched legal argument.
3) Vojska v. Ostowski[15]
In Vojska, the deceased died on September 9, 2022. Prior to this, a will was prepared on October 7, 2011. The deceased and her husband attended a lawyer’s office on this day to sign new wills and powers of attorney. Each spouse signed a will and two power of attorney documents. A lawyer and a law clerk witnessed the signing ceremony. The lawyer, however, in the midst of the six documents to be signed, failed to sign the deceased’s will.
Myers J. in holding that the will dated October 7, 2011 is as valid and fully effective as the will of the deceased as if it had been properly executed or made remarked how “it is hard to imagine a more textbook example of a case for which the new power was intended.”[16]
In Vojska, Myers J. with the benefit of hindsight, provided a thorough analysis which included the previous two decisions His Honour rendered. Myers J. opined how in Cruz, he mentioned the test out of Western Canada, requiring “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”[17]
Interestingly, Myers J. discussed the decision in White, and remarked how he “mused in obiter dictum about whether an unsigned draft will can ever be sufficiently fixed and final for the purposes of that section. His Honour went on to ask, will the phrase “not properly executed” in s. 21.1 include “unexecuted” (i.e. unsigned) documents.”[18]
Concluding Thoughts on the Development of the Law
I have previously written on s. 21.1(1) in my article on the unreported Grattan decision.[19] In that article, much like the obiter comments of Myers J., I queried whether an unsigned draft will could represent a fixed and final testamentary intention. In that article, it was suggested that decisions from Alberta, which, unlike British Columbia and Manitoba, require a signature to represent a fixed and final intention might have been worthy of consideration.
It will also be interesting to see how this s 21.1 decisions continue to develop and in light of some of the considerations addressed by Myers J. in White.
We have now had four decisions and we are all watching!
—
[1] R.S.O. 1990, c. S.26 [SLRA].
[2] See Professor Albert Oosterhoff, “Welcome Amendments to Ontario’s Succession Law Reform Act” (2021), WEL Partners Blog, accessed online: https://welpartners.com/blog/2021/02/welcome-amendments-to-ontarios-succession-law-reform-act/
[3] SLRA, supra at s. 4 [2].
[4] 2023 ONSC 3629 [Cruz].
[5] 2015 BCSC 182 [Estate of Young].
[6] Estate of Young, supra at para. 35.
[7] Cruz, supra at para. 9.
[8] 2023 ONSC 3740 [White].
[9] R.R.O. 1990, Reg. 194.
[10] Estate of Young, supra note 6.
[11] White, supra at para. 18.
[12] R.R.O. 1990, c E.21.
[13] In White at para. 36, Myers J.
[14] White, supra at para. 34.
[15] 2023 ONSC 3894 [Vojska].
[16] Vojska, supra at para. 12.
[17] Ibid., at para. 21.
[18] Ibid., at para. 22.
[19] See Brett Book, “Interpreting Ontario’s Validating Provision in Grattan Estate” (April 10, 2023), WEL Partners Blog, accessed online: https://welpartners.com/blog/2023/04/interpreting-ontarios-validating-provision-in-grattan-estate/
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Written by: Brett Book
Posted on: July 31, 2023
Categories: Commentary, WEL Newsletter
Recent changes to the Succession Law Reform Act[1] which came in through Ontario’s Bill 245, Accelerating Access to Justice took force and effect on Feb. 16, 2021.[2] However, it was nearly two years before a representative case was brought before Ontario courts. Earlier this year, I wrote about that unreported decision in an article which can be found here.
To briefly recap, section 4 [2] of the SLRA deals with the valid execution of a will and requires that a will is not valid unless it is signed by the testator (or someone else in his/her presence or direction), in the presence of two or more attesting witnesses at the same time and that two or more of the attesting witnesses also subscribe the will in the presence of the testator.[3]
Section 21.1(1), a validating provision, allows courts the discretion to declare a will valid and fully effective despite its non-compliance with the aforementioned section 4 [2].
In the February 1, 2023 decision in Grattan v. Grattan, an unsigned and unwitnessed draft will was declared valid and fully effective. Following this decision, three more decisions dealing with s. 21.1(1) were released by the Ontario Superior Court of Justice. All of these decisions were released in June and all were decided by the Honourable Mr. Justice FL Myers. The cases are as follows:
1) Cruz v. Public Guardian and Trustee[4]
In Cruz, the deceased had prepared his own will. The will was clearly drafted and clearly expressed the testamentary intentions of the deceased; however, the will was unsigned and unwitnessed.
In determining whether s. 21.1(1) could be utilized to validate this will, Myers J. looked to the British Columbia decision in Estate of Young[5] and was ultimately satisfied that the document in question “records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”[6] In determining that the will in question is valid and fully effective, Myers J. held that “[f]ixing this type of mistake is precisely what s. 21.1 seems to be for.”[7]
2) White v. White[8]
In White, section 21.1(1) was addressed but not plead after an applicant seeking directions to obtain access to the files of his late mother’s lawyer brought an application under Rule 75.06 (1) of the Rules of Civil Procedure.[9] The applicant, who was trying to consider whether he might mount a will challenge, was not objecting to the certificate of appointment of estate trustee.
In White, the Applicant’s counsel argued that the draft will being prepared might be an expression of the Applicant’s mother’s testamentary intention to revoke or alter her 2014 will and that if so, the court might recognize the draft will under s. 21.1(1) of the SLRA.
According to the Applicant, he engaged a lawyer in 2021 to help his mother update her will. As such, he emailed a lawyer on July 10, 2022 to book a consultation appointment. Several conversations took place over the ensuing weeks concerning the updating of his mother’s will. Between August 9 to 12, three emails were sent to the lawyer in an attempt to book an appointment to finalize the will. An appointment was set for August 16, 2022. On the morning of the appointment, the deceased suffered a stroke and was hospitalized. The lawyer attended the hospital for formal execution but the mother was unable to sign. She died six days later on August 22, 2022.
Myers J. was dubious that s. 21.1(1) could apply on these facts and noted that the email on August 16, 2022 between the lawyer and the deceased only referenced that she wanted to have a telephone conversation with the deceased. His Honour did not believe this sounded like a will was ready to be signed.
Notwithstanding the aforementioned, in White, Myers J. looked at the decision in Estate of Young, for the need for a court-ordered will to record “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”[10] Myers J. held that “It is hard to see how a draft will can meet that threshold.”[11] Importantly, it was also noted by the court that because this was not an application under s. 21.1(1), His Honour did not need to decide if the new unsigned, unreviewed, draft will or the solicitor’s notes are an effective will-equivalent.
The endorsement of Myers J. in White included some thoughts for consideration on the development of the law. Particularly, His Honour questioned whether section 9 of the Estates Act[12], a section designed to help beneficiaries find and obtain a deceased person’s will, could apply as well to a document that one hopes might qualify as a will-equivalent under s. 21.1.[13] His Honour later went on to say that the availability of a pre-lawsuit discovery order requires an argument based on research and that, “in light of the novelty of s. 21.1, the relief requested may have a far broader reach than just this case.”[14] The Applicant was urged to return to a case conference to propose a process to have this matter heard with researched legal argument.
3) Vojska v. Ostowski[15]
In Vojska, the deceased died on September 9, 2022. Prior to this, a will was prepared on October 7, 2011. The deceased and her husband attended a lawyer’s office on this day to sign new wills and powers of attorney. Each spouse signed a will and two power of attorney documents. A lawyer and a law clerk witnessed the signing ceremony. The lawyer, however, in the midst of the six documents to be signed, failed to sign the deceased’s will.
Myers J. in holding that the will dated October 7, 2011 is as valid and fully effective as the will of the deceased as if it had been properly executed or made remarked how “it is hard to imagine a more textbook example of a case for which the new power was intended.”[16]
In Vojska, Myers J. with the benefit of hindsight, provided a thorough analysis which included the previous two decisions His Honour rendered. Myers J. opined how in Cruz, he mentioned the test out of Western Canada, requiring “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”[17]
Interestingly, Myers J. discussed the decision in White, and remarked how he “mused in obiter dictum about whether an unsigned draft will can ever be sufficiently fixed and final for the purposes of that section. His Honour went on to ask, will the phrase “not properly executed” in s. 21.1 include “unexecuted” (i.e. unsigned) documents.”[18]
Concluding Thoughts on the Development of the Law
I have previously written on s. 21.1(1) in my article on the unreported Grattan decision.[19] In that article, much like the obiter comments of Myers J., I queried whether an unsigned draft will could represent a fixed and final testamentary intention. In that article, it was suggested that decisions from Alberta, which, unlike British Columbia and Manitoba, require a signature to represent a fixed and final intention might have been worthy of consideration.
It will also be interesting to see how this s 21.1 decisions continue to develop and in light of some of the considerations addressed by Myers J. in White.
We have now had four decisions and we are all watching!
—
[1] R.S.O. 1990, c. S.26 [SLRA].
[2] See Professor Albert Oosterhoff, “Welcome Amendments to Ontario’s Succession Law Reform Act” (2021), WEL Partners Blog, accessed online: https://welpartners.com/blog/2021/02/welcome-amendments-to-ontarios-succession-law-reform-act/
[3] SLRA, supra at s. 4 [2].
[4] 2023 ONSC 3629 [Cruz].
[5] 2015 BCSC 182 [Estate of Young].
[6] Estate of Young, supra at para. 35.
[7] Cruz, supra at para. 9.
[8] 2023 ONSC 3740 [White].
[9] R.R.O. 1990, Reg. 194.
[10] Estate of Young, supra note 6.
[11] White, supra at para. 18.
[12] R.R.O. 1990, c E.21.
[13] In White at para. 36, Myers J.
[14] White, supra at para. 34.
[15] 2023 ONSC 3894 [Vojska].
[16] Vojska, supra at para. 12.
[17] Ibid., at para. 21.
[18] Ibid., at para. 22.
[19] See Brett Book, “Interpreting Ontario’s Validating Provision in Grattan Estate” (April 10, 2023), WEL Partners Blog, accessed online: https://welpartners.com/blog/2023/04/interpreting-ontarios-validating-provision-in-grattan-estate/
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