Wills not validly executed may now be capable of being declared valid because they exhibit a deliberate or fixed and final expression as to the disposition of a testator’s property on death.
Essentially, this is what Section 21.1 of the Succession Law Reform Act seeks to give effect to: a legislative provision to cure that which was previously uncurable:
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.
This was the issue in Grattan v. Grattan, an unreported decision of the Ontario Superior Court, which was brought before The Honourable Mr. Justice J. M. Johnston respecting an unsigned and unwitnessed Last Will and Testament of the late Nadene Grattan (the “Deceased”).
On February 15, 2022, the Deceased passed away. The Applicant is the brother of the Deceased. The Deceased did not have a spouse at the time of her death (having been divorced since the mid-1980s), had no other siblings alive, no children and no grandchildren. One of the siblings who predeceased the Deceased was the father of the Respondent. Accordingly, the Respondent was the nephew of the Deceased.
The Applicant led evidence that the Respondent was estranged from the Deceased. The Respondent did not appear before the court
In January 2022, the Deceased met with Ms. Coleman to have a will prepared. A memorandum made by Ms. Coleman specified that the entirety of the residue of the estate of the Deceased was to go to the Applicant. An estate planning checklist form which Ms. Coleman used in her preparing the Will noted that the Respondent was someone from whom the Deceased was estranged. The will was prepared accordingly.
On January 20, 2022, Ms. Coleman sent the Deceased the prepared Will by email. The Deceased merely made minor changes to it here and there, to the spelling of a name, for example, to the location of the Deceased’s residence. Importantly, no substantive changes were made – no changes to the provisions of which specified who would take as beneficiary, no addition of any new provision or provision naming a new beneficiary residual or otherwise.
The Deceased returned her will to Ms. Coleman by email. On February 1, 2022, Ms. Coleman replied to the Deceased, asking her to schedule an appointment with Ms. Coleman to finalise the will. The Deceased did not respond. The will was not finalised. Neither was it signed, nor was it witnessed. Fifteen days later, the Deceased died. The will was not formally executed.
At paragraph 21 of his decision, noting that Manitoba has a similar provision to Ontario’s s 21.1(1), used to validate a will that has not been formally executed, Johnston J. cited George v. Daily (1997) CanLii 17 825, a Manitoba Court of Appeal case, which, on the question of testamentary intention, had this to say:
The crucial question to be answered is whether there was a deliberate or fixed and final expression of intention as to the disposal of his/her property on death; not every expression made by person whether made orally or in writing respecting the disposal of his/her property on death embodies his/her testamentary intention.
The Will was accordingly declared to be the valid and fully effective will of the Deceased. No doubt we can look forward to more caselaw in the months to come.
Thanks for Reading,
David Morgan Smith and Michael Bolotenko’