January 1, 2022 was an important date for our Wills & Estates practice area, given that a number of updates came into effect. Some updates are discussed in my previous article here.
Another important change is that Wills which are “substantially compliant” with legal requirements may, in some circumstances, now be accepted as valid testamentary documents.
Previously, Ontario was a “strict compliance” jurisdiction, meaning that if a Will was not drafted or executed absolutely 100% in compliance with legal requirements, then it was ineffective, and judges had no discretion to accept invalidly executed documents. So if, for example, a Will was executed in the presence of only one witness, instead of two witnesses as required, or if a document purporting to be a “holographic” Will was not written entirely in the Testator’s own handwriting, then neither document could be used to determine the distribution of the deceased’s assets – both would be invalid and nothing could “save” them.
Judges will now have discretion to determine if a document brought before them should be accepted as someone’s Last Will & Testament, even if there are some problems which should otherwise render it invalid. Importantly, the document will still need to “set out the “testamentary intentions of [the] deceased”, and it must still be in writing (i.e. no video or audio Wills yet!). This may end up being a positive development for many beneficiaries, as more individuals may have their testamentary intentions and desires actually fulfilled after death.
Re: Lacroix Estate (2021 ONSC 2919), released in April 2021 – before the “substantial compliance” rules now in place – dealt with a hand-written document written in contemplation of death. It was accepted that very shortly prior to her death, the deceased likely wrote out the following:
Tuesday May 26, 2020
I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.
RSLacroix
The deceased had retained a lawyer to assist her with drafting a Will, but given COVID restrictions, the lawyer was unable to meet with the deceased at the hospital in order to assist with execution, so the lawyer instructed her client to create a holographic Will and to incorporate by reference the hard copy of the draft Will that she (the lawyer) had prepared. The lawyer relied on the doctrine of “incorporation by reference,” which can allow a document entirely separate and apart from a Will to be considered part of the Will.
Unfortunately for those seeking to rely on Ms. Lacroix’s document, the judge held as follows:
“[24] The document referred to as Ms. Lacroix’s holograph will is written wholly in her own handwriting (s. 6 of the SLRA), as attested by Ms. Opatovsky in her affidavit dated March 12, 2021. The signature immediately follows the handwriting, and it is apparent that Ms. Lacroix intended to give effect to the document via her signature (s. 7 of the SLRA). The document also indicates clear testamentary intent as it states that “this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.”
[25] However, while the language evinces a deliberate and final expression of Ms. Lacroix’s intention to dispose of her property in accordance with the terms of the draft will, the holograph will does not stand alone as a valid testamentary document, as it does not independently make any disposition of property as required by Bennett v. Toronto General Trusts Corp…
[26] As well, both Re Dixon-Marsden Estate and Facey v. Smith stand for the principle that a holograph will cannot incorporate by reference a typewritten document, as a holograph will by its very definition must be wholly in the handwriting of the testator. Together these authorities yield the conclusion that the documents before the court cannot be probated.
[27] While the Saskatchewan case Chamberlain Re suggests that a typewritten document may be incorporated into a holograph will, in that case, the holograph will itself made a disposition of jewelry and directed that the testator’s remains be cremated. As such, even if Re Dixon-Marsden Estate and Facey v. Smith are not followed with respect to their commentary that typewritten notes may not be incorporated into a holograph will, the first issue remains, as Ms. Lacroix’s handwritten document does stand as an independently valid testamentary instrument.
[28] For the above reasons, I decline to issue the Certificate.”
Had Ms. Lacroix died today and an application for a Certificate of Appointment (formerly “letters probate”) made shortly thereafter, would the result be different?
In the last few years in Canadian jurisdictions, writings as varied as “sticky notes” (Alberta, Dalla Lana Estate (Re), 2020 ABQB 135), hand-written notes on an earlier executed Will (B.C., Estate of Palmer, 2017 BCSC 1430), suicide notes (Ontario, McGrath v. Joy, 2020 ONSC 7454, and B.C., Gregoire v. Cordani, 2020 BCSC 276), and handwriting on a paper napkin from a McDonald’s restaurant, by a diner who thought he was having a heart attack (Saskatchewan, Gust v Langan, 2020 SKQB 42) have been brought before courts and had their validity debated.
While previously many, if not most, of these kinds of documents may have been rejected almost immediately, one cannot help but wonder if the results might indeed be different today. Going from “strict compliance” to “substantial compliance” may not seem significant, but it is – one guarantee is that we will probably see more estate litigation in the future to determine the validity of improperly-executed Wills.
