In the recent case of Salmon v. Rombough, 2024 ONSC 1186, the Ontario Superior Court of Justice validated the contents of the Deceased’s notebook as a Will.

The Deceased passed away on January 15, 2022, with a Will dated April 14, 2012. Shortly after his passing, the Applicant, who is one of the named Estate Trustees in the 2012 Will, found a notebook dated December 31, 2021, in the Deceased’s desk drawer, in which the Applicant contends that the contents of the notebook are an authentic record of the Deceased’s deliberate fixed and final expressions of intention to dispose of his property on death.

The Applicant brought this application to validate the notebook as the fully effective Will of the Deceased as if it had been properly executed or made.

The notebook included excerpts of the 2012 Will with handwritten annotations from the Deceased. The notebook is signed by the Deceased and dated as December 21, 2021.

The Respondents, who were both current and previous beneficiaries of the 2012 and 2021 Wills, contested this application and argued that the Deceased lacked the testamentary capacity to sign the notebook as the Deceased had heart issues.

The Court considered s. 21.1(1) of the Succession Law Reform Act, which came into force on January 1, 2022:

21.1 (1) If 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 a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

The Court also considered the legal principles for determining testamentary capacity, as evidenced in McGrath v. Joy, 2022 ONCA 119.

The Court also considered that in order to validate the 2021 notebook, the Applicant must establish on a balance of probabilities that the Deceased had the requisite testamentary capacity to sign the document, that the document was not induced by undue influence or fraud, that any suspicious circumstances have been resolved and that the document is authentic in that the Deceased knew and approved the content and it represented his deliberate fixed and final expression of intention as to the disposal of his property on death.

The Court ultimately decided that 2021 notebook is authentic and was crafted with testamentary capacity without undue influence or compromising circumstances and together embodied the Deceased’s final deliberate animus testandi (intent to make a testamentary document).

In summary, this case exhibits that although there may be a properly executed and witnessed Will at one point of time, changes made be made by documents that can be later validated by the new section 21.1 rule, providing testators with more freedom as to the disposition of their property.

Thanks for reading and have a great day!
Kiran Sanghera