Recently, my colleague wrote a blog on Salmon v. Rombough, 2024 ONSC 1186, which involved the application of section 21.1 of the Succession Law Reform Act (the “SLRA”). The decision of Re: O’Neill Estate, 2024 ONSC 2228, involves another application of such section.

The Applicant was the brother of the Deceased. The Respondents were the brother, in his capacity as Estate Trustee for the Deceased’s Estate, and the six other potential beneficiaries.

The Applicant brought an application, pursuant to section 21.1, to validate a Will made by the Deceased (with the Applicant’s help) approximately 2 months before her death.

The Will failed to meet the requirements of subsections 4(2)(b) and (c) of the SLRA, because the two “witnesses” to the Will were not actually present. While the Applicant did witness the Deceased sign the Will, he did not sign as a witness because he was one of the beneficiaries.

The Applicant’s evidence was uncontested. However, Justice MacLeod pointed out that effectively the Applicant was attesting to the validity of the Will. In effect, the Applicant was doing what the SLRA discourages – acting as both witness and beneficiary.

This raised the question of whether section 12(1) of the SLRA, bequests to witness void, should apply to the Applicant who was also a beneficiary. However, Justice MacLeod highlighted that section 12(3) provides an exception, where the Court is satisfied that no undue influence was exerted.

Based on the affidavit evidence and circumstances presented, Justice MacLeod found there was nothing to suggest undue influence. The Will provided bequests to other beneficiaries that were greater than what they would receive on an intestacy. Further, all the beneficiaries, except one, had consented to the Order validating the Will. The one beneficiary who did not consent attended the hearing and advised (a) he was not opposed to a declaration of validity; and (b) he had no evidence to suggest the document did not represent the Deceased’s wishes.

In conclusion, Justice MacLeod was satisfied that the Will was in fact signed by the Deceased (the Applicant had produced identification and documentation to demonstrate her signature), and while it was not witnessed by the subscribing witnesses, the evidence supported a finding that the document contained her testamentary intentions. Thus, it was appropriate to make an Order under section 21.1.

It will be interesting to continue to see the cases that apply the recently enacted section 21.1 of the SLRA.

Thanks for reading!

Megan Zanette