In Dokis v. Burgaretta et al., 2025 ONSC 4287 (“Dokis”), the Court addressed the validity of a Holograph Will discovered after the issuance of a Certificate of Appointment of Estate Trustee without a Will for the estate of Glenna Eleanor Simcoe (the “Certificate””). [1] This blog overview will focus primarily on the Court’s application of Section 31 of the SLRA, referred to as the “anti-lapse provision”.

The Background

Rosemarie Dokis (the “Applicant”) brought a motion for directions respecting the Holograph Will of Glenna Eleanor Simcoe (the “Deceased”) that was found after the Applicant received the Certificate.[2] The Holograph Will, dated July 11, 2000, named several beneficiaries, some of whom predeceased the Deceased, including Leonard Simcoe (“Leonard”), D’Arcy Beers (“D’arcy”), Gregory Sawyer (“Gregory”), and Albert Rusling (“Albert”).[3]

The court examined the validity of the Holograph Will under section 6 of the Succession Law Reform Act (the “SLRA”), which allows a testator to make a valid will entirely in their handwriting and signature without formalities or witnesses.[4]  Additionally, the court considered section 18 of the SLRA regarding alterations to a will, which requires the testator’s signature for any changes to be valid.[5]

Although, the court determined that the Holograph Will was valid, given it had been signed and written in the Deceased’s own handwriting, it however, found that all the Deceased’s revisions to the Holograph Will but for one, were invalid. This court’s rationale for this was that the Deceased had only initialed, rather than signed near the alterations.[6]

The alteration to the Holograph Will that was deemed valid was a revision which obliterated a bequest to a beneficiary who had died after the execution of the Holograph Will. The court cited section 18(1) of the SLRA as the authority for this decision, which provides as follow:

18 (1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Part governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent.[7]

The remaining question for the Court was how the anti-lapse provision applied to the predeceased beneficiaries and how the Estate should be distributed.

The Law

The anti-lapse provision under Section 31 of the SLRA stipulates that if a gift is made to a child, grandchild, brother, or sister of the testator who dies before the testator, the gift does not lapse but instead passes to their issue, unless a contrary intention is expressed in the will.[8] In this case, the court had to determine whether the testator expressed any contrary intention that would prevent the application of this provision.[9] Additionally, the court had to determine the testator’s subjective intention at the time the will was executed.[10] The court asserted the following:

[37]           The starting point is the language in the will itself. As stated in leading decision Ross v. Canada Trust Company, 2021 ONCA 161, the Court will also consider the surrounding facts and circumstances known to the testator at the time the will was made – an overarching framework known as the “armchair rule”. The court will assume the same knowledge the testator had at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members

Analysis

Leonard, the Deceased’s brother, was one of the beneficiaries who predeceased the Deceased. The court found that the anti-lapse provision applied to Leonard’s share because there was no contrary intention expressed in the Holograph Will.[11] The court noted that Leonard’s children were already named as beneficiaries, indicating Deceased’s intention to benefit them. Consequently, Leonard’s share was distributed per stirpes to his children, in accordance with Section 31 of the SLRA.[12]

Application to Other Beneficiaries

For other predeceased beneficiaries like Gregory and Albert, the court had to consider whether the anti-lapse provision applied. Gregory, the Deceased’s nephew, did not fall within the categories protected by Section 31, as the provision does not extend to nephews.[13] However, the court applied the “golden rule” of will construction, which favors interpretations that avoid intestacy, to determine the Deceased’s intention.[14] The court concluded that the Deceased did not intend for Gregory’s share to lapse and be distributed on an intestacy, as this would benefit family members she specifically excluded.[15]

Similarly, for Albert, the Deceased’s brother-in-law, the court applied the same reasoning. Although the anti-lapse provision did not apply, the court inferred from the surrounding circumstances and the Deceased’s clear exclusion of certain family members that she intended for Albert’s share to be distributed among the existing beneficiaries.[16]

Concluding comments

Dokis illustrates that while the anti-lapse provision provides a safety net for certain familial relationships, yet, it is not all-encompassing. Beneficiaries outside the specified categories require careful consideration of the testator’s intentions and the surrounding circumstances to determine the appropriate distribution of their shares.

—

[1] Ibid at para 4

[2] Ibid at para 1

[3] Ibid at para 2

[4] Ibid at para 11

[5] Ibid at para 24

[6] Ibid at para 28

[7] Ibid at para 18

[8] Ibid at para 40

[9] Ibid at para 40

[10] Ibid at para 36

[11] Ibid at para 45

[12] Ibid at para 49

[13] Ibid at para 50

[14] Ibid at para 57

[15] Ibid at para 65

[16] Ibid at para 67