In the spirit of All Hallows’ Eve, what better way to celebrate than to review a decision from the Ontario Superior Court of Justice sure to instill fright and terror in the heart of every wills and estates lawyer across the province. Indeed, many a legal practitioner has devoted a blog post or two to portend the dangers and pitfalls of using do-it-yourself legal forms to draft a will.

As part of a burgeoning group of cases interpreting and applying section 21.1, the recent decision of Groskopf v. Rogers et al, 2023 ONSC 5312 (“Groskopf”) provides some welcome guidance on the circumstances when a Court may validate a “fill-in-the-blanks style” will pursuant to section 21.1 despite non-conformance with the formal requirements as set out in section 4(2).

Perhaps inspired by the simple brilliance of Mad Libs®, the deceased in Groskopf prepared her last will and testament (the “Will”) as a “fill-in-the-blanks style document” in her own handwriting. The Will had been found in a lock box in the home where the deceased was residing at the time of her death. Her Will had been signed but not dated. Further, while there were two spaces for witnesses to affix their signatures, none could be found.

Despite the formally dubious nature of the Will, the Court was nonetheless prepared to apply section 21.1 to find that the Deceased’s Will set out the fixed and final testamentary intentions of the deceased despite the deficiencies.

In coming to its conclusions, the Court scrutinised the various circumstances surrounding the creation of the Deceased’s Will. Based on the Court’s findings of fact,

• the lack of an alternate caregiver for the deceased’s dogs and a small handwritten correction that was not initialled does not support the finding that the Will was a draft document;
• specific bequests were made and provision was made for the estate residue to be divided between the applicant and one of the respondents as an alternate;
• there was no dispute the Will had been prepared by the deceased;
• the Will addresses the entirety of the deceased’s estate and it was signed;
• the deceased and her brother had been involved in a disagreement that strained their relationship around the time the Will was prepared, and the deceased’s brother was specifically excluded from her Will;
• the argument that the deceased had excluded her brother as a beneficiary despite their reconciliation before her death was evidence her Will did not express her final testamentary intentions is vitiated by the lack of evidence that the deceased intended to change her Will to include her brother and by virtue of section 17(1), which provides that “a will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances”, and section 22 of the SLRA;
• along with the Will’s being found in the lock box, other handwritten notes were found, including instructions to the Applicant on how to deal with the distribution of the estate. There was also a document entitled “Estate Planning & Inventory”, which was another “fill-in-the-blanks form” that had the deceased’s handwritten notations; and
• provision was made for her dogs’ care.

It’s worth noting that by the time the Groskopf decision was released on September 21, 2023, the only decisions interpreting section 21.1 were Grattan v. Grattan (Unreported decision of Justice J.M. Johnston dated February 1, 2023), Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, White v. White Estate, 2023 ONSC 3740 and Vojska Estate v. Ostrowski, 2023 ONSC 3894. Followers of the blog can listen to our podcast Hull on Estates #672 presented by Natalia Angelini and Sydney Osmar and the blog post by David Morgan Smith and Michael Bolotenko for an in-depth discussion about those cases.

The Groskopf decision is certainly a much-needed one to supplement the limited collection we have now, and it reflects the very purpose for which the Accelerating Access to Justice Act, 2021 was brought into law: to reform and modernise our archaic judicial system.

However, we’re still in the early throes of this new legislation and it remains to be seen in those “hard” cases to what extent an impugned will can be non-conforming as to remove itself from the operation of section 21.1.

Thanks for reading.

Aaron Chan

An earlier version (October 23, 2023) of this blog post erroneously identified the relationship of one of the respondents as “husband of the deceased”. The current version (October 23, 2023) of this blog post has been updated to accurately reflect the relationship as “brother of the deceased”.