Tag: execution of wills

14 Jan

Probate and Wills: What About Electronic Wills?

Kira Domratchev Estate & Trust, Estate Planning, Wills Tags: , , , , , , 0 Comments

In Ontario, a Will has to be in writing and typically an original is required for probate to be granted. With the increase of the technological presence in the everyday life of a typical Canadian, the question remains, should electronic Wills be admitted to probate?

Clare E. Burns and Leandra Appugliesi wrote an interesting paper on this topic titled “There’s an App for that: E-Wills in Ontario” that argued for the development of a legislative scheme in Ontario that admits the possibility of electronic Wills.

In discussing this question, the experience of other jurisdictions was considered, including the United States and Australia.

In 2005, the State of Tennessee was the first American state to recognize the validity of a Will executed with an e-signature. In that particular case, the deceased prepared his Will on his computer and asked two of his neighbours to serve as witnesses. A computer-generated signature was affixed to the Will. Almost ten years later, in 2013, the State of Ohio admitted to probate a Will that was written in the deceased’s own handwriting and signed by him, on a tablet computer.

It appears that electronic Wills are most probably valid in Florida, Texas and California and consistent with existing legislation, though the legislation does not specifically contemplate electronic Wills. The State of Nevada, on the other hand, has specifically enacted legislation which expressly allows for the validity of electronic Wills.

Australia, in comparison to the United States, has managed the question of electronic Wills by making use of the “substantial compliance” legislation that exists in each state, which gives the state courts the authority to dispense with the formal requirements for the execution of the Will. In comparison, the legislation in Ontario is one of “strict compliance” such that the formalities of a Will are required before a Certificate of Appointment is granted.

It appears that in Ontario, though a Court could theoretically admit an electronic Will (i.e. not an original copy) to probate, the formalities in accordance with the Succession Law Reform Act must be met, in any event. As a result, an electronic Will that does not meet any one of the formalities will almost certainly not be admitted to probate.

As various electronic gadgets are now being used more and more, Canadians are also using them to make testamentary documents. In keeping with the realities of contemporary life, it may be that legislative reform is needed.

In discussing the possibility of legislative reform, Ms. Burns and Ms. Appugliesi, also addressed the importance of various policy considerations. In doing so, they addressed the John J. Langbein analysis, which set out four main purposes to the formalities requirements in any Wills legislation:

  1. Evidentiary: the writing, signature and attestation requirements serve as evidence of testamentary intent in a reliable and permanent form;
  2. Channeling: the writing, signature and attestation requirements ease the administrative burden on the court system by setting out a uniform checklist of what is required before probate can be granted;
  3. Cautionary: the formalities are designed to impress the seriousness of the testamentary act upon the testator so as to ensure that he or she has fully thought through the result of executing the Will; and
  4. Protective: the formalities are designed to reduce the opportunity for fraud and undue influence by involving witnesses in the process.

As litigators, the “evidentiary” and the “protective” purposes are particularly important, as we often consider questions of testamentary intent, undue influence and fraud (albeit more rarely), amongst other things.

From that perspective, any legislative amendments to be made must address the various policy considerations and the implications of any such amendments on the legal system in Ontario.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

The Introduction of e-Wills

Unsent Text Message Found to Be Valid Will. LOL.

The Validity of iWills

14 Sep

The Doctrine of Republication

Suzana Popovic-Montag Estate Planning, Wills Tags: , , , , , , , 0 Comments

Republication of a valid will makes the will operate as if it were created on the date of republication. Generally speaking, a codicil republishes the will to which it refers, unless a contrary intention is expressed in the codicil. For example, a codicil, duly executed on September 14, 2016, to an earlier will would republish the will, making it operate as if the will were executed on September 14, 2016. This is true whether or not the codicil is annexed to the will. A testamentary document that is not called a codicil and that does not make reference to a specific earlier will does not republish the will.

Republication of a Will
“Republication of a valid will makes the will operate as if it were created on the date of republication.”

The Wills Act, 1837 provided that a republished will is deemed to have been made at the time of the republication. The Succession Law Reform Act (SLRA) does not make any reference to republication, to either confirm or abolish the doctrine. Thus, the SLRA has a neutral effect on the doctrine, and it continues to operate
in Ontario law.

The concept of republication was more important before the Wills Act, 1837 was enacted, when it was a rule of law that real property acquired after the date of the execution of a will could not be devised by that will. The Wills Act, 1837 changed the law so that a will speaks from the date of death in respect to the property of the testator.

Republication can still be useful in estate planning. For example,  republication can be used to incorporate by reference a document or memorandum into the will that was not in existence when the will was first executed (Lady Truro, Re (1866), [1865-69] LR 1 P &D 201). Republication might also be significant in construing the meaning of certain provisions of a will, particularly descriptions.

Thank you for reading.

Suzana Popovic-Montag

05 Nov

Ontario’s Unforgiving Formal Execution Requirements for Wills

Hull & Hull LLP Estate & Trust Tags: , , , , , , 0 Comments

The formal requirements for execution of a will, or any testamentary instrument in Ontario, are governed by Part I of the Succession Law Reform Act ("SLRA").  The definition of "will" in s. 1 of the SLRA includes a testament, codicil, will, or other testamentary disposition.  The most critical form requirements are that the will must be in writing, signed by the testator and two witnesses.  Other requirements exist, of course.

Many jurisdictions contain dispensation clauses relaxing the formal compliance requirements, if the court is satisfied that a document or any writing on a document embodies the testamentary intentions of a deceased.  For example, s. 23 of Manitoba’s Wills Act  or California’s Probate Section 6110-6113.  Not so with Ontario, except for holograph wills and for members of the Canadian Forces on active service.  While there is wiggle room in terms of the interpretation of the execution requirements, for instance what constitutes "in writing" or "signed by the testator", if the formal requirements are not met and no specific exemption applies, there is no saving provision based on testator’s intention, and therefore no testamentary instrument.

This can have harsh consequences, by invalidating otherwise perfectly good wills on narrow technical grounds.  On the other hand, the SLRA provides time-tested, black-letter legal clarity.  Time tested, because the formal requirements descend from the Wills Act, 1837.

Have a great weekend,

Chris Graham

Christopher M.B. Graham – Click here for more information on Chris Graham.

30 Sep

Will Challenge Litigation – Part 7 – Hull on Estate and Succession Planning

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , , , , , , , 0 Comments

 

Listen to Will Challenge Litigation – Part 7

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They discuss fraud as one of the most serious ways in which a will can be challenged. Evidential requirements are important when allegations of fraud or forgery are made. Handwriting analysis and other scientific means of determining the legitimacy of evidence can be employed to determine whether or not fraud has occurred. Ian and Suzana also talk about lack of proper execution being grounds to challenge a will.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

READ MORE

16 Sep

Will Challenge Litigation – Part 5 – Hull on Estate and Succession Planning

Hull & Hull LLP Capacity, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , , , , , , , , , 0 Comments

Or, listen to the audio version of Will Challenge Litigation – Part 5

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They continue to discuss the process of will challenges in closer detail. What makes a good case? They talk about the five different grounds upon which a will can be challenged:

  1. Lack of testamentary capacity
  2. Existence of suspicious circumstances
  3. Will not having been properly executed
  4. Existence of undue influence
  5. Possibility of fraud

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

25 Dec

Executor Obligations – Hull on Estate and Succession Planning Podcast #92

Hull & Hull LLP Executors and Trustees, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Podcasts, PODCASTS / TRANSCRIBED, TOPICS, Trustees Tags: , , , , , , , , , 0 Comments

Listen to Executor Obligations

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss what to anticipate as an executor and how to ensure that you are well prepared for your duties.

11 Sep

DUE EXECUTION OF A WILL – PART I

Paul Emile Trudelle Archived BLOG POSTS - Hull on Estates Tags: , , , 0 Comments

Hello. My name is Paul Trudelle, and I am an associate with Hull and Hull LLP. I am the guest “blogger” this week.  I plan to use my time and space to address some of the issues surrounding the due execution of a will.

Execution of a will is often seen as a simple task, but the process can sometimes pose serious challenges to the practitioner retained to prepare an effective will. Challenges to the validity of a will on the basis of due execution are common, as are solicitor negligence actions where the will fails as a result of improper execution.

The requirements for due execution of a will are set out in Part I of the Succession Law Reform Act, R.S.O. 1990, c. S.26 as amended (“SLRA”). The SLRA provides the framework for the valid execution of a will. These sections merit a review. Section 3 provides that a will is valid only when it is in writing. “Writing” is defined in s. 29 of the Interpretation Act, R.S.O. 1990, c. I.11 as including words printed, painted, engraved, lithographed, photographed, or represented or reproduced by any other mode in a visible form.

There is no provision for videotaped wills in Ontario. A will may be written in a foreign language. However, when applying for a Certificate of Appointment, the Court must be furnished with an authenticated translation. Alternatively, a non-English speaking testator can have the English will read to him by a translator. The translator should swear an affidavit averring that the will was read over to the testator and that he or she appeared to understand it. Section 4(1) of the SLRA sets out the requirements for due execution.

Tomorrow, I will look closely at the requirements of this section.

Have a great day. Paul Trudelle

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