In my last blog, I considered Grattan v. Grattan, an unreported decision out of the Ontario Superior Court of Justice at Brockville, in which an unsigned and unwitnessed Will was declared to be a valid and fully effective last will and testament. In arriving at this decision, the Court gave consideration to the application of will validation legislation in Manitoba.
Re Clarke Estate, a decision of the Supreme Court of British Columbia released January 10, 2023, may further assist in the evolution of Ontario jurisprudence considering the new s 21.1 of the Succession Law Reform Act (“SLRA“).
Judith Dianne Clarke (the “Deceased”) was survived by her brother, Jeffrey (the “Petitioner”) and her stepdaughter, Cindy Lou (the “Respondent”).
Two wills were found in the home of the Deceased: (i) a formally executed will, (the “formal will”), drafted either by lawyer or notary public, made in 1994; and (ii) a wholly handwritten will, (the “handwritten will”), signed by the Deceased, but whose signature was witnessed by a single witness, made in 2013. The formal will left the residue of the Deceased’s estate to the Respondent, while the handwritten will bequeathed it to the Petitioner.
The Petitioner sought a declaration from the Court that the handwritten will was valid and fully effective despite being witnessed by only one person. (Note: Holograph Wills are not recognized in B.C.) The Petitioner relied upon s. 58(3) of the Wills, Estates and Succession Act (“WESA”) which is similar to s. 21.1 of the SLRA.
As Justice Giaschi J. stated at paragraph 33 of his Judgment:
a court may order that a document be fully effective as the will of the deceased person, even though it does not comply with the requirements of s. 37(2). To make such an order, the court must be satisfied that the requirements of s. 58(3) are met, which is to say that court must be satisfied that the document represents the testamentary intentions of the deceased person.
His Honour further relied on Hadley Estate (Re), a 2017 British Columbia Court of Appeal case. There, at paragraph 35, the Court confirmed that, for an order to be granted pursuant s. 58, the Court must be satisfied that the purported will represents a deliberate or fixed and final expression of intention as to the disposal of the testator’s property on death. Notably, the Court in Hadley stated: “s. 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective.”
Given the wording of s. 21.1 of the SLRA, and specifically “[i]f the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of the deceased…”, it would appear in Ontario that the document or writing need not have substantially or otherwise complied with some or any of the requirements necessary under s. 4 of the SLRA. There appears to be no minimum threshold of execution needed; rather, a simple finding of a deliberate or fixed and final expression of intention by the testator.
Justice Giaschi found such deliberate or fixed and final expression in the Deceased’s handwritten will. It was in the Deceased’s own handwriting. She described it as her last will and testament three times. The handwritten will revoked all previous wills. It contained a testamentary disposition to the Petitioner. It was signed by the Deceased herself.
Thanks for reading,
David Morgan Smith and Michael Bolotenko