Tag: Testamentary Document
People change their mind all of the time. When someone changes their mind about the terms of their Will however, things can become more complicated. Going to a lawyer to formally make a change to the Will may seem daunting. If the change to the Will is relatively minor, an individual may be tempted to forgo meeting with a lawyer to draw up a new Will or Codicil, and simply make the change to the Will themselves by crossing out or inserting new language by hand on the face of the old Will. But would such handwritten changes be valid?
Although the advice to any individual thinking of changing their Will would always be to speak with a lawyer about the matter, people do not always adhere to such advice. If someone has made handwritten changes to their Will after the document was originally signed, such changes can under certain circumstances alter the terms of the Will.
Section 18(1) of the Succession Law Reform Act (the “SLRA“) provides that unless any alteration to a Will is made in accordance with the requirements of section 18(2) of the SLRA, such alterations have no effect upon the provisions of the Will itself unless such an alteration has had the effect that you can no longer read the original wording of the Will. Section 18(2) of the SLRA further provides:
“An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.”
As a result of section 18(1) and 18(2) of the SLRA, any handwritten change to a Will does not validly alter the terms of the Will unless the testator and two witnesses sign in the margins of the Will near the alteration (subject to certain exceptions listed). If the handwritten change is not accompanied by such signatures it is not a valid alteration and has no impact upon the original terms of the Will, unless the handwritten change has had the effect of “obliterating” the original language of the Will by making it no longer readable.
Thank you for reading.
On Monday’s blog, I discussed the mechanisms available to Ontario courts under the Declarations of Death Act to deal with the estate of a deceased person who “returns from the dead.” In today’s blog, I thought it might be useful to look at similar provisions under Ontario’s Absentees Act and to distinguish between the purpose of each Act as well as the authorities of the court thereunder.
The most obvious distinction is evident in the titles of each Act. The Declarations of Death Act, unsurprisingly, concerns individuals that have been declared deceased by the courts. In contrast, and perhaps even more unsurprisingly, the Absentees Act deals with “absentees.”
An absentee is defined under section 1 of the Absentees Act as a person, ordinarily resident in Ontario, who “has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.” Similar to the analogous provision in the Declarations of Death Act, section 2 of the Absentees Act allows the Superior Court of Justice to declare a person to be an absentee if a “due and satisfactory inquiry has been made.”
The difference in finality of an order declaring an individual to be deceased rather than merely an absentee is also reflected in the authority given to the courts in dealing with an individual’s property under each Act. Once an individual is declared deceased, that individual’s property is subject to distribution in accordance with any testamentary documents that he or she may have left, such as a will. Without going into significant detail, the property rights of the testator as well as those of any beneficiaries will be substantially impacted as a result of a declaration of death. The courts will be reluctant to trigger these rights absent a conclusive determination of death.
As a result of the foregoing, the Absentees Act gives no authority to the courts to order distributions of property pursuant to a testamentary document. In effect, the authority of the courts over the property of an absentee is severely limited, at least until he or she is declared as such in accordance with the Declarations of Death Act, or unless evidence of his or her death is produced.
Rather than create circumstances that may trigger distributions of an absentee’s property, the Absentees Act may require an individual to instead ensure its upkeep while the absentee is, well, absent. Section 4 of the Absentees Act allows a court to make an order to ensure the “custody, due care and management” of an absentee’s property by a committee, if needed.
This appointee would essentially function as a caretaker of the absentee’s property. The committee has all of the powers and duties of a guardian of property under the Substitute Decisions Act, including the authority to expend the absentee’s own funds for the purposes of determining whether he or she is alive or dead.
Thanks for reading.
As an estates litigator for the past 25 years, there isn’t much I haven’t seen when it comes to will drafting issues and errors. I’ve made a living out of picking up the pieces and sorting out the conflicts that result from errors and ambiguities in the estate documentation process.
While it’s great for my business, clients pay a high price for those errors and ambiguities in the form of legal fees, bequests lost, and family harmony dashed to bits among other things.
A will may be one of the most common documents in our legal world, but there is nothing off-the-shelf about it, and complexities abound. You’ve likely experienced it your own practice – drafting a will “right” isn’t always easy.
Is there a better way to draft one – so that the proper checks are made, the proper questions asked, and the proper wording applied?
You bet. The Hull e-State Planner is an interactive Will Planning App designed specifically for Canadian lawyers. It takes a visual approach to will planning, one that’s easy for you to use and easy for your client to understand and verify that their wishes have been properly captured.
You can find out more about it here. https://e-stateplanner.com/about/
Or, to see the Hull e-State Planner in action, take a few minutes to watch how the App takes you through the drafting process. https://www.youtube.com/watch?v=wyZWyM9gktQ
Even better, try it yourself, with a 30-day, 100% money back guarantee. You’ll find it a small price to pay for a better way to draft your clients’ wills.
Thanks for reading,
Last week we blogged on limited grants in the event that the executor is located out of the jurisdiction. There are two other types of limited grants to consider: grants where an original will or codicil is unavailable and administration durante animi vitio. Furthermore, it is important to consider making alterations in grants in the case of an error.
A limited grant may be necessary where an original testamentary document is unavailable or if there will be a delay in the production of certain codicils. The grant may be limited until the time when the original or the codicils are produced. This grant will allow an individual to act as administrator of the estate until such documents can be located. If the original will is with somebody abroad who is unwilling to produce it, it is possible to grant probate pending the receipt of the original. In a case of urgency, it is possible that a copy of an original will may be admitted, limited until the original arrives. If a copy is admitted, an individual must apply to the court by an order for directions under Rule 75.06 of the Rules of Civil Procedure.
Another type of limited grant is administration durante animi vitio, roughly translated as “administration for the use and benefit of a person under a disability”. If a person entitled to a grant of administration was of unsound mind at the time of the deceased’s death, or became of unsound mind after receiving the grant, administration for his or her use and benefit would be granted to someone else until the individual returned to sound mind. If a sole executor or administrator becomes incapacitated through mental or physical illness, the grant can be revoked and administration can be granted to his or her guardian.
If a certificate of appointment has been issued, but there is a defect in the document, it is important to alter or amend the document. If an error is a bona fide mistake and is not of significant importance to require the revocation of the grant, the amendments may be made based on satisfactory evidence. These types of amendments include minor details such as the name of the executor, or the date of death. This will result in the execution of a new bond. When an error is discovered, an affidavit should be filed confirming the mistake on the original and attesting to the correction, and the registrar will then make any changes required. If property is discovered after the grant of probate or administration and was not originally included in the application, the executor or administrator must deliver a true statement of the property verified by oath to the registrar in Ontario. This may result in the individual having to pay an increased surety to account for the extra value of property.
Thank you for reading,
As Christmas Eve is just hours away, it seems fitting to focus today’s blog on family holiday traditions and estates. One such tradition has been in the Ford (not the ex-Toronto mayoral) family for the past 137 years. Yes, this is a blog about a fruitcake. Not to be confused with a Panettone, but a fruitcake baked by Fidelia Ford in 1878 that has since passed through her issue over three generations.
In 1878 Ms. Ford baked a fruitcake that would age for a year and be eaten during the next holiday season. However, Ms. Ford passed away prior and her surviving children considered the fruitcake as the most immediate link to their mother. In fact, the Ford family genealogy states that “…there wasn’t anyone to bake another, so they decided to keep it out of respect for her memory”. As such, they kept the fruitcake in her honour.
It does not appear that Ms. Ford’s Last Will left any specific instructions as to the preservation or management to the custodians of this decadent asset. Steadfastly, the fruitcake has been stored in a glass dish with only one significant intrusion when an Uncle Amos attempted to eat the fruitcake in 1964. This would of course have arisen many years after the fruitcake would have deemed to have been disposed of in accordance with the twenty one year rule against perpetuities.
Lately however, according to a recent article in The Globe & Mail the fruitcake family tradition seems uncertain as Ms. Ford’s issue seem not to want it. Like so many atypical testamentary dispositions, the author of the article states that “an heirloom for one generation becomes a headache for the next. Tradition becomes chore”.
Alas, many hours on google has left me none the wiser as to whether any testamentary trusts have been settled for the benefit of a fruitcake…or any other food for that matter. I am also none the wiser as to whether Ms. Ford’s fruitcake would have fallen into her residue or distributed according to the personal property provisions in her Will (assuming she had one).
While I cannot admit to liking fruitcake, especially the antiquated varietal, Ms. Ford’s story provides a pleasant holiday reminder to enjoy family and traditions that bring family together. And, because this is an estates blog – to ensure that all assets are addressed, including those with sentimental value, in your testamentary documents.
Testamentary instruments, that is.
A common burr among beneficiaries is that the estate trustee often resists disclosing the deceased’s Will or other testamentary instruments. Without reviewing the entirety of the testamentary instruments, beneficiaries may never feel certain of the extent of their interest in an estate. This strategy tends to add fuel to pre-existing distrust among the parties.
Fortunately, there is a simple solution. By section 9(1) of the Estates Act, any person may be forced to produce any testamentary instrument, and by section 9(2) any person with knowledge of a purported testamentary instrument can be forced to answer questions about the document:
9. (1) Whether a suit or other proceeding is or is not pending in the court with respect to a probate or administration, the Superior Court of Justice may, on motion or otherwise in a summary way, order any person to produce and bring before the registrar, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary that is shown to be in the possession or under the control of such person.
(2) If it is not shown that such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he or she has knowledge of such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or before the registrar or such person as the court may direct, or upon interrogatories respecting the same, and to produce and bring in such paper or writing, and such person is subject to the like process in case of default in not attending or in not answering questions or interrogatories or not bringing in such paper or writing, as the person would have been subject to if he or she had been a party to a suit in the court and had made such default, and the costs of such motion or other proceeding are in the discretion of the court.
With these provisions, motions are often not necessary. A simple letter bringing the provision to the attention of the estate trustee along with a polite request to produce the document(s) is all that should be required. By the same token, estate trustees (or anyone else with possession or knowledge of documents purporting to be testamentary) have no justification for secrecy. Happily, this provision creates a powerful incentive for information-sharing, which is often a prerequisite to ending or preventing an estates dispute.
Have a great day,
Christopher M.B. Graham – Click here for more information on Chris Graham.
In Ontario, a testamentary document that is entirely made in the handwriting of a deceased and signed by him or her may be considered a valid will without the necessity of witnesses. But where such a document has two lines with the word “witness” under each line at its end, and where no one has signed as a witness, does the document still meet the requirements of a valid will?
This was the fact situation which presented itself in the recent Ontario case: Re Atherton Estate. The Court concluded that, while there was no question that the document met the formal validity requirements of a holograph will*, the surrounding circumstances suggested that the deceased intended the document to be a draft that would not take effect until it had been typed out and re-executed by the deceased in the presence of two witnesses.
The wrinkle was that, when the relative to whom the deceased had given the handwritten documents returned to visit him in hospital the next day with the typewritten copies, the deceased exhibited no intention to execute the will in its typewritten form.
David M. Smith
*Succession Law Reform Act, R.S.O. 1990, C. S. 6