The Case of the Forged Holograph Will
A recent decision of the Ontario Superior Court of Justice, Grillo Estate v Grillo, 2015 ONSC 1352, considered an Application for an Order invalidating the holograph Will of Domenico Grillo. The Applicant was the adult daughter of Mr. Grillo, who also had two other adult children. Mr. Grillo had been born in Italy but prior to his death, was domiciled in Ontario. He had family in Italy, namely his sister and her children, and would frequently visit them. One of these such visits was in March 2014, despite the fact that at the time he was very ill.
On July 1, 2014, Mr. Grillo’s niece, Anna (in Italy) called his daughter in Canada, to tell her that Mr. Grillo was very ill. Anna subsequently made several other calls that seemed suspicious to Mr. Grillo’s children. The three children decided to go to Italy to check on their father. However, before they were able to reach him, Mr. Grillo passed away on July 4, 2014. Upon arrival, the children found that many of their father’s possessions were missing from the home he owned and in which he had been staying. Among the missing possessions were his wallet, bank cards, credit cards, passport, and jewellery.
The children were then presented with a document which Anna purported to be a holograph Will executed by Mr. Grillo on May 5, 2014, while he was in Italy. The beneficiaries under this Will were his three adult children, as well as Anna, his niece. Mr. Grillo had executed a prior Will in 1994, under which his three adult children were equal beneficiaries. Mr. Grillo’s children could immediately see that the alleged holograph Will was not written in their father’s handwriting. An Italian handwriting expert also came to the same conclusion.
As this case had an international aspect, the court had to determine whether there was a real and substantial connection to the jurisdiction of Ontario, using the tests laid down in Club Resorts Ltd v Van Breda,  1 S.C.R. 572. The Court found that there was a real and substantial connection, due to the following:
- Notwithstanding that Mr. Grillo was in Italy when he died, he was a resident of Ontario and Rule 17.02(b) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits service ex juris in respect of the administration of the estate of a deceased person who was a resident of Ontario, or for the setting aside of a will in respect of personal property in Ontario;
- All presumptive connecting factors generally pointed to a relationship between the subject matter of the litigation and the forum of Ontario such that it would be reasonable to expect that the defendant, in this case Anna, would be called to answer legal proceedings in Ontario;
- As per section 26(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, the fact that Mr. Grillo was domiciled in Ontario at the time of his death, means that the law of Ontario will govern the formalities and validity of both the 1994 will and the 2014 will.
Perhaps the most interesting element of this case is that criminal charges had been laid in Italy for various counts of theft, and writing and registering a forged will. In light of this evidence, as well as the evidence from the Applicant and the handwriting expert suggesting that Mr. Grillo had not written the 2014 holograph Will, the Court had little trouble finding that the holograph Will was not valid.
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