The Six-Minute Estate Lawyer – A Reflection

August 9, 2021 Fred Tonelli Uncategorized Tags: , , 0 Comments

I recently attended a replay of a Continuing Professional Development webinar, hosted by Ms. Lisa Toner and our own Mr. Ian Hull, in which a number of estates lawyers had the opportunity to give six-minute presentations on select, relevant subjects in estates law in 2021.

A presentation on holograph wills by Ms. Clare Burns particularly caught my attention.

Normally, when drafting a will, strict formalities are required, including the signatures of two or more witnesses. The one major exception in Ontario is the “holograph” will – a will written and signed entirely in the testator’s own handwriting.

However, as of January 1, 2022, a new section added to the Succession Law Reform Act, namely Section 21.1, will allow courts to order validation of an improperly executed document if it “sets out the testamentary intentions of a deceased.” The previous passing of similar “substantial compliance” legislation in other provinces has resulted in attempts to probate documents such as diary entries (B.C.), memoranda of an accountant (Manitoba), and sticky notes (Alberta) as testamentary documents, to varying degrees of success.

Ms. Burns suggests that Ontario will likely follow the lead of the British Columbia Court of Appeal in applying this new legislation. In the landmark decision of Re: Hadley Estate, the B.C. Court of Appeal applied the following two-part test: 1) is the document authentic?; and 2) if it is authentic, but not compliant with the formalities for holograph wills, does it represent the deceased’s intentions at the time that document was created? The Court also added that any valid document should have been drafted with the knowledge and consent of the deceased, if it was not in their own handwriting.

Furthermore, certain factors will support the finding of testamentary intention, including: if it was signed by the deceased, if there are witness signatures, if there are references to the revocation of previous wills, if executors are named, and if there are specific bequests. Conversely, there are facts that will weigh against a finding of testamentary intention, including: if written in pencil, if a document is incomplete, if using a pre-printed will form, and if a person has a previous formal will.

Nonetheless, it remains to be seen how this legislation will play out in litigation with the courts in Ontario.

Thank you for reading!

Fred Tonelli

Leave a reply

Your email address will not be published. Required fields are marked *

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

TRY HULL E-STATE PLANNER SOFTWARE

Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!

CATEGORIES

ARCHIVES

TWITTER WIDGET

  • Interesting: Dependant support claims need to be served on “all interested parties” Read today's article to learn… https://t.co/sxqLVEWCu1
  • The @LawSocietyLSO provides assistance and guidance when you are trying to locate a Will. Read Last Friday's artic… https://t.co/hoJIrdbDVe
  • Thompson and Virtual Litigation Today's article explores the questions surrounding the fate of virtual litigation.… https://t.co/nQ4KgbPP2V
  • Last Thursday's article: Applying the new standard for limitation periods. Read the full blog here:… https://t.co/tiPOz7skaK
  • Improving Dispute Resolution for the Last Stages of Life Read today's full article exploring the, Last Stages of L… https://t.co/7fWx7b9PDi
  • Planning for Blended Families Read last Wednesday's blog, which explores the unique challenges presented when esta… https://t.co/7G0LI8QAGX