In Dyal v. Dyal, 2023 ONSC 4322, the Ontario Superior Court of Justice confirmed the validity of a formally executed Will, rejected reliance on an unsigned “modified” version, and granted Orders for vacant possession of estate property and occupation rent.
The decision illustrates that formal execution requirements remain central, that informal writings will not necessarily be treated as testamentary, and that the Court may grant relief where estate property is occupied without legal entitlement.
The Background
The deceased died in 2021, leaving two sons. One son acted as the Estate Trustee and sought a declaration that a 2000 Will was valid. The other son challenged the Will, relied on an unsigned “modified” version, and maintained that he should be able to continue as an occupant of estate property.
On the record before the Court, the Estate was insolvent. The Estate Trustee also sought vacant possession of the property and occupation rent.
1. Formal Execution Under the SLRA
The Court accepted that the 2000 Will complied with section 4 of the Succession Law Reform Act (the “SLRA”). The unsigned “modified” version did not meet the statutory execution requirements and did not displace the valid Will.
The decision reflects the principle that compliance with statutory formalities matters. A later document may not be given effect if it fails to satisfy the requirements of the SLRA.
2. Informal Writings and Testamentary Intention
The Court treated the Deceased’s handwritten notes as administrative in nature and not testamentary. They did not contain dispositive language and did not revoke or alter the Will.
The Court emphasized that testamentary intention must be determined from the words used in the document. Absent clear dispositive wording and compliance with formal requirements, informal writings may not affect the testamentary scheme. While it is important that informal writings of this nature be reviewed and preserved, Estate Trustees should not assume that they contain valid testamentary instructions.
3. Vacant Possession and Occupation Rent
The Court ordered the Respondent to vacate estate property and awarded occupation rent based on the principles of unjust enrichment. In doing so, the Court applied the framework set out in Bergmann v. McMahon, 2010 ONSC 993.
The Court found that the rent-free occupation constituted:
- An enrichment to the respondent;
- A corresponding deprivation to the Estate; and
- An absence of juristic reason.
Practical points for Estate Trustees:
- Provide clear written notice demanding vacant possession;
- Obtain the best available market evidence to support any occupation rent claim; and
- Maintain detailed records of all carrying costs, including taxes, utilities, and insurance.
4. Costs Consequences
The Court awarded costs against the respondent personally, referring to the Respondent’s unreasonable position and the existence of a reasonable pre-hearing offer made by the Applicant.
Conclusion
Dyal v. Dyal reinforces the central role of compliance with the SLRA’s formal requirements, confirms that informal writings may not displace a valid Will absent proper execution, and demonstrates that the Court may grant practical relief, including vacant possession, occupation rent, and costs, where the administration of an estate is being impeded.