Earlier this summer, our colleague, Nicole Cianci, blogged on the decision in Re Pearce Estate, 2022 ONSC 4028.

This was a matter in which it was not clear to the Court whether a point-form document left by the deceased was intended to function as a will.  The document itself included the title of “Outline of Will”, which, along with some of its wording and the format of the document, raised the issue of whether the document was intended to set out instructions for a new will (to be prepared at some future time) or to take effect to replace the deceased’s prior will.

Justice MacLeod outlined the further information and evidence that would be required to satisfy the Court that the “outline” document was intended to function as a valid will (at paragraph 10 of the decision):

1. in the presence of one affidavit of execution, whether the other subscribing witness was still available and whether they were prepared to swear an affidavit;
2. the circumstances surrounding the preparation of the “outline” document and the decision to sign it in front of witnesses;
3. any additional evidence that the document was intended to be given effect as a new will;
4. whether the previous testamentary instruments referenced in the document are still available and how they differ from the new will;
5. the position of the beneficiaries and whether they are content that the document be treated as the last will of the deceased and to take the gifts provided under it;
6. the existence of other beneficiaries who would be entitled to a share of the estate on intestacy or who were named in the previous will that may be entitled to notice.

While we await the outcome of the decision as to whether the “outline” document in this case is a valid will, these points may be of some guidance in similar matters in which courts must consider whether a document left by the deceased was intended to revoke and replace the person’s previous testamentary documents or was a mere guide or instructions to be provided to a drafting solicitor who would then be asked to prepare a new will.  These considerations, which speak to the circumstances surrounding the making of a will, may also be relevant to matters where will validation is requested under the new Section 21.1 of the Succession Law Reform Act.

Thank you for reading,

Nick Esterbauer