It was only a matter of time before the issue of will validation was considered by a Judge on the Toronto Estates List.

The Honourable Justice Myers released his Endorsement on June 6, 2023 in (the currently unreported case of) the Estate of Reinhard Zerbe, deceased. His Honour exercised his power under s. 21.1 of the Succession Law Reform Act to validate a Will that was signed by the Deceased but not witnessed.

The Deceased died on January 13, 2022, leaving a testamentary document entitled “Last Will and Testament of Reinhard Klemens Zerbe” dated September 26, 2017. The Deceased also attached a note to the Testamentary Document. Both documents were signed and dated on the same day. The Testamentary Document solely benefitted the Deceased’s girlfriend. The Note was addressed to his friend Stephen whom the Deceased appointed as executor of his estate and asked that that he get the Testamentary Document witnessed:

Hi Stephen, This will is just a very simple will. I did not get a chance to get it witnessed…please get this done as soon as possible...

Stephen’s affidavit evidence was that, sometime during the fall of 2017 or the spring of 2018, he met with the Deceased. The Deceased gave Stephen a sealed envelope which he told Stephen contained his will. Stephen did not open the sealed envelope during the Deceased’s lifetime. Stephen kept the sealed envelope in a safe location inside his residence until the Deceased’s death on January 13, 2022. Shortly thereafter, Stephen opened the sealed envelope. Inside the envelope Stephen saw the Testamentary Document and the Note. He recognized the handwriting on the envelope, the Note, and the Testamentary Document as being that of the Deceased.

During the period commencing from when he first gave Stephen the Testamentary Document to when he died, the Deceased never spoke to Stephen about the Testamentary Document, never spoke to Stephen about wanting to change it, and never expressed to Stephen any testamentary intention inconsistent with the provisions of the Testamentary Document. A search of the deceased’s premises after Death found no other Will.

Justice Myers found that the propounder had met the burden of proof to establish that, on a balance of probabilities, the Will was authentic and should be admitted to probate:

“I am satisfied that this document “records a deliberate of fixed and final expression of intention as to the disposal of the deceased’s property on death” Estate of Young, 2015 BCSC 182 (CanLII), at para. 35. That’s all that it does. It purports to be a will. It is signed in the deceased’s hand. The deceased just blew the formalities. Fixing this type of mistake is precisely what s. 21.1 seems to be for.”

Thanks for reading,

David Morgan Smith