All About Estates

What the Law Takes Away, the Law can just as Easily Give Back

I previously blogged about the importance of making a will to ensure that your testamentary wishes are carried through.  Eissmann v Kuntz is a recent Ontario Superior Court of Justice decision illustrating the unintended consequences of improper estate planning.

Background

Siegfried Kunz was born in Germany in 1937.  He married his ex-wife in 1961.  They had one daughter together, Petra, in 1962.  Siegfried and his ex-wife divorced in 1967 and, soon after, Siegfried emigrated to Canada.  Siegfried and Petra had a falling out in or around 1989, after which they never spoke or saw each other again.  Siegfried did not remarry or have any other children.

However, all was not lost for Siegfried.  With the fall of the Berlin Wall, Siegfried found his family in the former East Germany and established close relationships with them.  Aside from his family in Germany, Siegfried had no relatives.

Siegfried died in Canada in 2016.  Police eventually located his sister in Germany, Ruth, to advise of his death.  Ruth, in turn, hired Matthias Duensing (a lawyer in Ontario) to assist with administering Siegfried’s estate.  Eventually, Siegfried’s four testamentary documents were found, none of which appointed an estate trustee.  Ruth and Mr. Duensing then brought a motion for directions regarding, among other things, which of Siegfried’s four testamentary documents was his last valid will and testament.  The beneficiaries under the four testamentary documents, including Petra, were put on notice.

The Wills

Siegfried executed 4 testamentary documents during his lifetime:

  1. A will in January, 1967, executed before a notary in Germany. This will divided Siegfried’s estate between his ex-wife and Petra;
  2. A will in October, 1982. This will was in Siegfried’s own handwriting and signed by him.  This will left his entire estate to Petra;
  3. A will in July, 2000. This will was also in Siegfried’s own handwriting and signed by him.  Notably, this will:
    1. left specific bequests to Ruth, Siegfried’s nephews, wives of the nephews, and Ruth’s grandchildren;
    2. left the residue of the estate to Petra “even though she [illegible] me”.  Siegfried did not contemplate a gift-over for the residue of his estate; and
    3. had several handwritten alterations, which the Court found had been made some time after December, 2008.  The alterations included substantial increases to the amounts of the specific bequests left to Ruth, Siegfried’s nephews, wives of the nephews, and Ruth’s grandchildren.
  1. And, a testamentary document in August, 2009, also in Siegfried’s own handwriting and signed by him. In this document, Siegfried did not make any testamentary dispositions.  Rather, he specified that “Petra … may not receive a single Euro out of my estate”.  This document also had an alteration to specify “amendments to my will dated July 15, 2000”.

The 2000 and 2009 documents were stored together in an envelope and kept in Siegfried’s apartment in Toronto.

Which Will is the Last Will?

The Law

In Ontario, the Succession Law Reform Act (“SLRA”) governs the rules regarding the validity of wills.  As previously blogged about, a will must either be a holograph will or a formal will to be a valid will in Ontario.  Pursuant to section 6 of the SLRA, a holograph will is one that is written entirely in the deceased’s own handwriting and signed at its end.

For an alteration to a holograph will to be valid, section 18 of the SLRA specifies that the testator must sign “in the margin or in some other part of the will opposite or near to the alteration” or “at the end of or opposite to a memorandum referring to the alteration and written in some part of the will”.

The Court’s Analysis

The parties all agreed that Siegfried died resident in Toronto.  It was also agreed that German law and Ontario law are materially identical with respect to holograph wills.  Finally, it was agreed that the 1967 will was revoked and of no force or effect.  The Court then embarked on an analysis as to which of Siegfried’s remaining 3 testamentary documents governed as his last will and testament.

With respect to the 1982 will, the Court found that it was a valid holograph will pursuant to the SLRA.  However, it had been revoked by the making of a subsequent will (i.e. the 2000 will).[1]

With respect to the 2000 will, the Court also found that it was a valid holograph will.  However, the Court found that the handwritten alterations made to the 2000 will were not valid as Siegfried did not sign the alterations he made to it “either in the margin or via an end note referencing them” pursuant to the SLRA.  Nevertheless, the Court concluded that the invalid alterations did not invalidate or otherwise effect the 2000 will.

Finally, the court concluded that the 2009 document was a codicil to the 2000 will.  The Court found that the 2009 document did not make any testamentary dispositions and was “not capable of operating as a stand-alone will”.  The Court further concluded that the “sensible construction of the 2009 document” was that it revoked the residual gift to Petra under the 2000 will.

The effect of the revocation, however, resulted in an interesting twist.  Because the residual gift to Petra was revoked and no gift-over was contemplated in the 2000 will, the residue was to be distributed pursuant to the rules of intestacy.  As discussed in my previous blog, the SLRA provides for a list of individuals, in hierarchical order, who the law presumes the deceased would have wanted to leave money to.  In this case, pursuant to the SLRA, Petra inherited the residue of Siegfried’s estate as his closest surviving relative.  Ruth forcefully argued that she and her family should inherit the residue as it was clear from the 2009 codicil that Siegfried wanted to disinherit Petra.  However, the Court emphasized that a testator’s intentions do not matter where intestacy is concerned and that the law is clear Petra is the next-of-kin and heir.

Conclusion

Needless to say, Siegfried left three ill-prepared testamentary documents that resulted in his daughter inheriting a large portion of his estate despite Siegfried’s wishes.  Surely, this unintended consequence could have been avoided had Siegfried sought proper estate planning advice.

[1] Pursuant to subsection 15(b) of the SLRA, a will or part of a will can be revoked by another will made in accordance with the SLRA.

About Anna Alizadeh
Anna was called to the Ontario Bar in June 2016. Prior to joining de VRIES LITIGATION LLP, she articled at a full service firm where she developed a strong background in litigation and alternative dispute resolution. Anna also worked on estate litigation files and estate planning matters, and co-authored a chapter on Physician Assisted Dying for Key Developments in Estates and Trusts Law in Ontario, 2015-2016 edition. She obtained her Honours Bachelor of Science in Psychology, with a minor in Biology, from York University, and her Juris Doctor from the University of Ottawa. While in law school, Anna participated in an exchange program in Paris, France, where she obtained her Certificate in French and European Union Law. Anna practices in the areas of estates, trusts and capacity litigation. She is fluent in Farsi and has a professional working proficiency in French. Email: AAlizadeh@devrieslitigation.com

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