This blog post was written by: Alicia Mossington, Estate and Trust Consultant, Scotiatrust London

Historically in Ontario, a Last Will and Testament was required to meet strict formal validity requirements to be considered valid. The requirements set out in the Succession Law Reform Act required a Will to be in writing and signed by the testator in the presence of two witnesses who also signed the document. There was a limited exemption for holograph Wills – documents wholly in the testators own handwriting that were signed and expressed a final testamentary intention.

In 2022 the formal validity requirements for Last Wills and Testaments in Ontario were changed to allow court applications to validate a document “purporting” to be a final Will.[1] Since 2022 several cases have offered guidance around the required analysis of testamentary documents.

McGrath v Joy, 2023 ONCA 46

Mr. Joy made a Will in 2014 and then another Will in 2016 with different instructions. In 2019, Mr. Joy spent the day before his death drinking and smoking drugs. He committed suicide the next day leaving a two-page handwritten note in the pocket of his shorts, listing his stepson and one other beneficiary.

The handwritten note contained alternate instructions from the previous wills and was submitted as a holographic will. The principal argument was that Mr. Joy lacked testamentary capacity when he wrote the suicide note. A secondary argument was made that the suicide note should be considered a codicil rather than a new valid Will.

The application judge considered Mr. Joy’s testamentary capacity at the time he wrote the suicide note, and reiterated the caselaw on testamentary capacity:

“a testator must (1) understand the nature and effect of a will; (2) recollect the nature and extent of his or her property; (3) understand the extent of what he or she is giving under the will; (4) remember the persons that he or she might be expected to benefit under his or her will; and (5) where applicable, understand the nature of the claims that may be made by persons he or she is excluding from the will.”[2]

On appeal – the Ontario Court of Appeal concluded that testamentary capacity was established and that the suicide note was Mr. Joy’s valid Will.

 

In Estate of Harold Franklin Campbell (RE) 2023 ONSC 4315, the court was asked to consider whether two handwritten notes dated 16 November 2016 and 9 June 2017 which were signed and stapled to the inside of a Will made in 1996 were sufficient to “resurrect” the 1996 Will. Under the SLRA at the time, Harold’s marriage to Carol in 2000 revoked the 1996 Will. The two handwritten notes where valid codicils and the court was asked to consider whether the codicils “revived” the 1996 Will. Ultimately, the court found that Harold thought the 1996 Will was valid and subsisting, and by purporting to vary it with his handwritten notes he “gave effect to the Will” thereby reviving it.[3]

 

Salmon v Rombough, 2024 ONSC 1186

One week after the death of Mr. Rombough, a bound notebook was found and the contents submitted as a valid Will. In 2012 Mr. Rombough had made a properly executed and witnessed will with his lawyer. The notebook contained excerpts of the 2012 will with handwritten notations, a signature and a date of 31 December 2021. Changes to the Succession Law Reform Act came into force 1 January 2022 and Mr. Rombough passed away on January 15^th. The court found that Mr. Rombough had testamentary capacity when he signed the 2021 document. Mr. Justice LeRoy further determined that both the 2012 and 2021 documents were testamentary; that the 2021 codicil amended the 2012 Will; and that “once [Mr. Rombough] thought he had finalized his estate instructions there was no need to belabour. He was out of time to see his solicitor.”[4]

 

Anderson v Anderson Estate, 2024 ONSC 7118

More recently in December 2024, the Ontario court considered whether a note, allegedly handwritten by Elizabeth Anderson (“Betty”) dated Jan 5/16 was considered a valid holographic will. The note had purportedly been received by Betty’s daughter Wendy. The note left Betty’s house and contents to Wendy. An undated Christmas card was also delivered by Wendy to Betty’s son Douglas with the same instructions. At issue was the validity of the note, and as well as Betty’s cognitive function and testamentary capacity. Considering the evidence presented, the court was prepared to find that the requirements of s. 6 of the SLRA were met[5] but was not prepared to make a finding about Betty’s actual testamentary capacity.

 

This author has only briefly summarized the analysis undertaken in these cases, but extensive analysis and evidence is required. Considering whether different types of documents could be considered Wills and the study of both testamentary capacity and intention requires an after-the-fact analysis that may be hampered by a lack of information and passage of time. Although it may now be possible to prove a handwritten note as a will, a well-drafted formal Will may still be the best choice to ensure testamentary wishes can be honoured.

[1] Succession Law Reform Act, s. 21.1

[2] McGrath v Joy, 2022 ONCA 119 at para 35, referring to Banks v Goodfellow (1870) L.R. 5 Q.B. 549 (UK Queen’s Bench Div.) and Hall v Bennett Estate (2003) CanLII 7157 (ONCA).

[3] Estate of Harold Franklin Campbell (RE) 2023 ONSC 4315 at para 13.

[4] 2024 ONSC 1186 at para 142.

[5] 2024 ONSC 7118 at para 40 referencing the requirement that a holograph will be “wholly by his or her own handwriting and signature”. See Succession Law Reform Act, R.S.O. 1990, c. S. 26 s. 6.