Handwritten Wills/Codicils are certainly quite rare, particularly for people with means. In certain circumstances, and particularly where the testator had made a pre-existing Will, the presence of a subsequent handwritten Will or Codicil can suggest the presence of suspicious circumstances.
As Paul Trudelle blogged last week, Larry King apparently executed a secret handwritten codicil in 2019 that divided his roughly $2 million estate amongst his five children, to the exclusion of his wife, Shawn King. Mrs. King apparently intends to challenge the validity of the 2019 codicil.
In Ontario, an amendment to a Will is referred to as a “codicil” and it is considered to be a Will, for the purposes of the Succession Law Reform Act. A handwritten Will, in Ontario, is referred to as a “Holograph Will” and the only requirement is that it be made wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. The fact that a Holograph Will is usually made without witnesses will often cause litigation, particularly if there are suspicious circumstances surrounding its execution and/or discord in the family of the deceased.
If Mr. and Mrs. King resided in Ontario, Mrs. King could pursue various claims in challenging the validity of the 2019 codicil (subject to the available evidence), including:
- Lack of requisite testamentary capacity on Mr. King’s part;
- Mr. King being subject to undue influence from any or all of his children (or other third parties);
- Presence of suspicious circumstances in the execution of the codicil; and
- Presence of fraud in the execution of the document (which is pleaded quite rarely, as there are serious costs consequences for those that make such an allegation but are unable to prove it).
It will certainly be interesting to see how this matter unfolds, particularly taking into account that $2 million is not a significant amount when the costs of litigation are taken into account.
Interestingly, some sources suggest that his Estate is actually worth $50 million, which sounds a lot more accurate!
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A recent question on Jeopardy! led me to look into the phrase “last will and testament”.
We all know what a will is. It is a legal document that sets out the testator’s wishes with respect to the disposal of his or her property upon his or her death. A testament is the same thing.
Commonly, a will is referred to as a “last will and testament”. Why the apparent redundancy?
The phrase is a historical reference to a period when English law and French law language were both used for maximum clarity. The phrase is a “legal doublet”. Other legal doublets include “cease and desist”, “part and parcel”, “terms and conditions” and “break and enter”. The list goes on and continues.
Diving deeper, the legal doublet “last will and testament” is an “irreversible binomial”: words that must be used together in a certain order. One would never refer to a “testament and last will”, much as one would never refer to “cheese and macaroni”, “abet and aid” or “void and null”.
Another theory as to why we refer to a “last will and testament” is that, historically, a will dealt with real property while a testament dealt with personal property. This theory has been debunked.
Still another theory is that, historically, lawyers and clerks were paid by the word. Why use one word when you can get paid for several?
Thank you for reading. Have a safe long weekend. As a client told me, stay positive and test negative!
Eric Schwam died on December 25, 2020, at the age of 90. He died leaving a will that provided a substantial bequest to the French village of Chambon-sur-Lignon. The gift was in thanks for the village’s assistance to Schwam and his family who were sheltered in the village during World War II as they escaped Nazi persecution.
According to a news report in The Times of Israel, Schwam and his family, originally from Austria, were taken in by the village townsfolk. They were amongst over 2,500 Jews harboured by the village during World War II. Previously, the village was honoured by Israel’s Yad Vashem Holocaust Remembrance Center as “Righteous Among the Nations”. (According to the Yad Vashem website, 3,000 to 5,000 Jews were protected by the village.) The village has received other such honours.
Schwam’s family arrived in Chambon-sur-Lignon in 1943, and were hidden in a school. The family remained in the village until 1950. Schwam then left the village, and studied pharmacy.
The mayor declined to state how much was given to the village of 2,470 (as of 2017). However, it is estimated that the gift was of $2m Euros. The funds are to be used for educational and youth initiatives, including scholarships.
Sometimes good deeds go unpunished.
Have a great weekend.
In recent months, an Ontario Superior Court of Justice province-wide Notice to the Profession has permitted the filing of applications for a Certificate of Appointment of Estate Trustee with a Will or a Certificate of Appointment of Estate Trustee Without a Will (“probate applications”) by email. Since then, the Rules of Civil Procedure were updated, effective January 1, 2021 to permit for the service of most court materials by email (among other updates).
Most recently, as of January 8, 2021, the Rules of Civil Procedure were further updated to provide for the options of serving notice of probate applications by email, courier, or personal service. Amended sub-rules 74.04(7) and 74.05(5) now read as follows:
Notice under this rule shall be served on all persons, including charities, the Children’s Lawyer and the Public Guardian and Trustee, and, unless the court specifies another method of service, may be served by,
(a) personal service;
(b) e-mail, to the last e-mail address for service provided by the person or, if no such e-mail address has been provided, to the person’s last known e-mail address; or
(c) mail or courier, to the person’s last known address.
Previously, the Rules of Civil Procedure required the Notice of Application in respect of a probate application to be served by regular lettermail.
Forms 74.06 and 74.16 (Affidavits of Service in respect of probate applications) have also now been updated to refer to these new manners of service of the Notice of Application in respect of a probate application. The revised forms are available here.
This further development in the modernization of estates law procedures is welcome and can be expected to better enable lawyers to assist clients in serving and filing probate applications more efficiently while working remotely during the pandemic and beyond.
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On December 7, 2020, the court decision in the Estate of Rezaee was released where a holograph will was later found in the winter coat of a friend and beneficiary. Facts from the decision include that the deceased, Kamran Rezaee was born on March 15, 1962, in Iran. He moved to Canada in 1983. Mr. Rezaee was diagnosed with pancreatic cancer and died on August 10, 2018. He had no family in Canada. His estate was valued at approximately $3.5 million at the time of the application.
On March 20, 2018, Kamran Rezaee attended a dinner party hosted by his friend, Mr. Naftchi to celebrate the Persian New Year. The dinner was attended by four other friends. At some point during the party, Mr. Naftchi testified that Mr. Rezaee wrote and signed in his own handwriting in Farsi a holograph will on a piece of paper. The writing has been translated as follows: “ I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.” This paper was written and signed in front of all of the dinner guests. Mr. Naftchi testified that Mr. Rezaee wrote this holograph will knowing that he had terminal cancer. Mr. Rezaee had no family living in Canada, and his family in Iran were all deceased. After signing the will, Mr. Rezaee put the will in his pocket and went into Mr. Naftchi’s bedroom to take a nap, which he did every one or two hours due to his health. In November 2018, Mr. Naftchi found the holograph will in one of his own winter jackets. He believes that Mr. Rezaee put the will in the jacket pocket when he went to sleep in the bedroom on March 20, 2018. When Mr. Rezaee died, Mr. Naftchi made the necessary funeral arrangements and paid for the funeral. After obtaining a professional translation of the holograph will, Mr. Naftchi applied to the court for a Certificate of Appointment of an Estate Trustee with a Will.
It is interesting to note the steps that were required to be taken in this case by the Court. On June 18, 2019, the Court issued an endorsement requiring Mr. Naftchi to prove the holograph will “in solemn form in an open court” and that the court will require independent witnesses as to Mr. Rezaee’s handwriting and signature, and that the Public Guardian and Trustee shall be served with the application. The endorsement required Mr. Naftchi to notify Mr. Rezaee’s next of kin and serve them with all court documents. Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, as the next of kin may have rights. The Public Guardian and Trustee was served with all of the relevant material, and counsel appeared to advise that their office took no position on the relief sought.
Mr. Naftchi published advertisements in Canada and in order to have the notice published in a national newspaper in Iran, Mr. Naftchi retained a lawyer in Iran to file an application there, for issuance of an inheritance restriction certificate for the deceased. They certified that Mr. Rezaee did not have any legal heirs in Iran. The Court in Canada was also provided with: the affidavit of Arian Nida confirming that he was present when the holograph will was written and signed by Mr. Rezaee; the affidavit of Nahid Lebasi confirming that he was well acquainted with the deceased’s handwriting and believes that the holograph will and signature were in the handwriting of the deceased; and Mr. Naftchi was sworn as a witness and provided oral evidence in support of his application. Given that the proceeding was uncontested the Court also followed up with additional questions. It was then ordered that the holograph will of Kamran Rezaee, dated March 20, 2018, was a valid holograph will and was probated.
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This week on Hull on Estates, Jonathon Kappy and Sydney Osmar discuss a recent decision arising out of the British Columbia Court of Appeal which provides a definitive answer on when reproductive material may be used posthumously for the purposes of creating an embryo.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
In July, my colleague Paul Trudelle discussed the Virtual Signing of Wills, noting that in response to the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney.
On December 10, 2020, pursuant to Ontario Regulation 458/20: Extensions of Orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, virtual signing of Wills and Powers of Attorney have been extended until January 20, 2021 in Ontario.
Ontario Regulation 129/20: Signatures in Wills and Powers of Attorney among other things, provides the following:
1. The requirement for a testator or witness to be present in each other’s presence for the making of a Will (or Power of Attorney) may be satisfied by means of audio-visual communication technology, with certain restrictions.
2. “Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
3. At least one person who is providing services as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution of the Will (or Power of Attorney).
4. The signatures or subscriptions may be made by signing or subscribing complete, identical copies of the Will (or Power of Attorney) in counterpart, which together shall constitute the Will (or Power of Attorney).
5. For this purpose, copies of a Will (or Power of Attorney) will be considered identical even if there are minor, non-substantive differences in format or layout between the copies.
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On November 25, 2020, the beautiful game lost one of its greatest legends, Diego Maradona. The famous Argentine footballer passed away at the young age of 60 years old, leaving behind millions of admirers around the world to mourn his death.
Maradona also left behind many children. In addition to his eight recognized children, there are supposedly at least two others claiming to be his offspring. The net worth of Maradona’s estate remains to be determined, as does the question of whether he made a Will. Nevertheless, should any opportunistic long-lost children succeed in proving paternity, they may have a claim to a share of Maradona’s estate.
In Ontario, a long-lost child could likewise benefit from their parent’s estate. A child has a statutory entitlement to a share of their parent’s estate where the parent dies without a Will. Pursuant to Part II of the Succession law Reform Act, those who have a right to inherit on an intestacy include the surviving spouse and the “issue”, or descendants, of the deceased.  The courts have confirmed that for the purposes of intestate succession, descendants are restricted to blood relatives (with the exception of adopted children, who have the same rights as a biological child). Thus, any purported child seeking an interest in an intestate estate must prove that they are the biological child of the deceased. If an illegitimate child can establish parentage, then they are entitled to share equally in an intestate estate with those born inside of marriage.
In the case of a testate estate, an alleged child of a deceased person may have a right to any bequest made in the deceased’s Will that is based on parentage. For example, a Will may provide for a gift to the testator’s “issue” or “children”. Unless a contrary intention is included in the Will, any person born outside of marriage who successfully proves parentage could be considered a part of the class of “children” or “issue” entitled to the gift.
Those purporting to be a child of the deceased can prove their familial relationship by presenting documentation like an Ontario Birth Certificate from a Vital Statistics Agency. If this documentation is not available or further evidence of kinship is requested by the estate trustee, DNA testing can also be used. Courts have recognized DNA testing as a reliable, efficient, and effective method of establishing parenthood in probate matters. Section 17.2 of the Children’s Law Reform Act and section 105(2) of the Courts of Justice Act grant Ontario courts the jurisdiction to order DNA testing to assist in determining a person’s parentage.
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 Joshua Nevett. Maradona: Why the football icon’s inheritance could be messy (December 6, 2020), online: BBC News <https://www.bbc.com/news/world-latin-america-55173630>
 Peters Estate (Re), 2015 ABQB 168 (CanLII), <http://canlii.ca/t/ggmgg>; Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1, s. 217 <https://www.ontario.ca/laws/statute/17c14#BK297>
 Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 17.2 <https://www.ontario.ca/laws/statute/90c12#BK23>; Courts of Justice Act, R.S.O. 1990, c. C.43, s.105(2) <https://www.ontario.ca/laws/statute/90c43#BK146>
Jordan Atin and e-State Planner are excited to announce the launch of the eState Academy – a free online estate planning education site for lawyers.
The goal of the Academy is to provide a space for learning and collaboration between lawyers where not only substantive legal issues are discussed, but practice tips. The course will provide its attendees with basic planning frameworks, as well as practical advice regarding client management.
New courses will be added throughout the year so that subscribers can both refresh their understanding of various estate planning topics, but also keep up with recent developments in the law.
The Academy offers a series of short video lessons, presentations and quizzes.
Thanks for reading and happy learning!
Recent reports indicate that Chadwick Boseman is the latest celebrity to die without a Will. His wife is currently seeking to be appointed administrator of his Estate.
This certainly shows that many people, including those with significant assets, often procrastinate when it comes to preparing a Will. The fact is that, no matter how many assets you have, a sound estate plan can help you address any potential tax liabilities, take advantage of certain planning strategies and otherwise make life much easier for your beneficiaries, as addressing an intestate estate can often have its challenges.
The benefits of making a Will are numerous, including (but not limited to) the ability to:
- Decide who gets certain personal items after your death;
- In contrast to an intestacy, provide for your children (if any), particularly if they are minors;
- Consider whether there are any parties who can complicate the distribution of your estate and address potential strategies in response to that;
- Appreciate what assets will form a part of your estate and what assets will flow outside of your estate, as well as the benefits associated with either;
- Take care of any pets that you may have (particularly those that may be expensive to maintain); and
- Decide who will be in charge of administering your estate.
Without a Will, you essentially leave the decisions respecting your assets in the hands of others and more often than not, in the hands of the Court. In certain situations, having no estate plan may fuel disagreements between your heirs which may leave long lasting effects on family relationships.
I, for one, think these are great reasons to make an estate plan!
Incidentally, it is “Make a Will Month” with the Ontario Bar Association. Click here for more details.
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