In the recent decision, Re: Pearce Estate, 2022 ONSC 4028, the court ruled that while it may be possible for an outline of a Will to meet the formality requirements in Ontario pursuant to section 3 and section 4 of the Succession Law Reform Act, RSO 1990 c. S26 (such that the Will be in writing and signed by the testator before two witnesses present at the same time), an outline of a Will cannot be admitted to probate without enough evidence to satisfy the court that the outline was intended to be a Will and intended to revoke any earlier Wills, when it was signed by the deceased.

The Applicant in Re: Pearce Estate sought to admit a document entitled “Outline of Will of Diane Frances Pearce” to probate as the last will and testament of the deceased. The document was in point form and was signed and witnessed. The court also received  an affidavit of execution by one of the witnesses who attested that she was present with the deceased and the other witness and saw the deceased sign it in their presence.

The document contained three lump sum gifts, the outline of a testamentary trust, and named the Applicant, as the “Trustee”. However, the document was ambiguous as to whether that meant the Applicant was only the Trustee of the testamentary trust or whether it named him as Trustee (Executor) of the estate.

The court held that on the face of it, the document was an outline for the preparation of a new Will, but there was no evidence provided to the court to prove that the deceased intended the outline to serve as her Will, as  there was no additional writing on the document to state that the document was to be treated as a Will. Moreover, while the document met the formality requirements pursuant to the SLRA, it was not clear to the court that the document was intended to be a Will.

There is no particular format of a Will required in Ontario, provided that the intention of the testator may be discerned from the document. Accordingly, without the ability to discern that the document was intended to be a Will, the court adjourned the matter to allow the parties to submit additional evidence to the court.

Thank you for reading and have a great day,

Nicole Cianci