Two weeks ago, I posted Part I of this series. This blog is the second edition, as promised, and will detail 3 more recently released decisions that have had a lasting impact in the estate litigation and planning worlds.
This decisions applies the (fairly) newly entrenched section 21.1 of the Succession Law Reform Act (“SLRA”), which allows documents to be recognized as valid wills by the court where they do not otherwise meet the regular execution requirements for a will, such as being signed, dated, and having witnesses. Under this new section, a non-compliant document may be validated if it is found as authentic and sets out the deliberate fixed and final intentions of the testator.
In this case, the deceased made a proper will on April 14, 2012. The deceased then died on January 15, 2022. After her death, a notebook was found by the applicant, who contended that the contents of the notebook should be validated by the courts as the valid last will and testament of the deceased.
The document in the notebook was made up of excerpts from the 2012 Will that were photocopied and pasted into the notebook together with other handwritten notes. The document in the notebook was signed and dated December 31, 2021, but was not witnessed and therefore did not comply with the formalities of execution.
After considering the evidence of family members and friends of the deceased, the Court found the document in the notebook to be authentic. Although there were claims that the document in the notebook looked like it was made “by a four-year-old” due to its crafty nature, the Court nevertheless held that:
“…the cut and paste method lifting pertinent sections of the 2012 will into the document in the notebook was efficient and precise. It saved a lot of handwriting and accomplished a careful meticulous redistribution of the deceased’s estate.”
The Court accepted that, had the deceased not died a mere 15 days after the document in the notebook was made due to a heart condition, he would have likely taken the notebook and all of its contents to his solicitor and updated his estate planning. The Court accepted evidence from the parties that the deceased was meticulous and paid careful attention to detail. It was clear that the deceased intended that both the 2012 Will and document in the notebook be read together, as the two documents read together fully disposed of the his estate.
The Court found that together, the deceased’s Will and the document in the notebook were valid and fully effective as the last will and testament of the deceased. Justice Leroy noted that section 21.1 of the SLRA is intended to be curative in nature, and the deceased’s testamentary intentions would have been frustrated if the document in the notebook was not validated.
In this estate, a beneficiary (the testator’s son) died before the testator. The testator’s will left a gift to that son, raising the question of what happens to that gift since the recipient is already deceased.
Under Ontario’s anti-lapse rule (section 31 of the SLRA), if a child, grandchild, or sibling of the testator is gifted something in the testator’s will but dies before the testator and leaves a spouse of children of their own, the gift intended for that person does not lapse (fail) but goes to that person’s surviving issue (unless the will shows a contrary intention). The central issue in this case was how to determine if the testator, through the will or otherwise, expressed a “contrary intention” that they wanted the gift to fail and fall into the residue if his son died before him.
This case examined the scope of the “armchair rule” in will interpretation – which is a principle that allows the court to consider evidence outside of what a plain reading of the will would show, such as the surrounding circumstances of the testator at the time the will was executed (makeup of their family, relationship to their family members, and the nature and extent of their assets) to determine the testator’s intention about whether the gift should fail or not.
While the outcome of this specific case was not reliant on examining outside evidence of surrounding circumstances, the Court confirmed that the armchair rule is applicable in these circumstances.
The Court ultimately held that the gift did not lapse/fail because the will showed that the testator had indeed turned their mind to what would happen if one of their children died before them.
This case is notable because it reinforces the idea that provisions in a will dealing with gifts should plan for what happens if the beneficiary of the gift dies before the testator. Whether that be that the gift should pass to the beneficiary’s spouse/children or that the gift should not pass to the beneficiary’s spouse/children, it should be clearly outlined in the will.
Stephanie had been declared mentally incapable of managing her property in 2012, and the Court appointed her ex-husband, Mr. Francois, as her legal guardian of property at that time. By 2025, Stephanie wanted to change her guardian. She applied to the Court on behalf of herself to replace her ex-husband with a new guardian of her choosing.
Her position was that even though she had been found incapable years ago, she should now be allowed to select a trusted person to manage her property instead of her former spouse. Her ex-husband opposed the change. However, the law requires that an incapable person is represented by someone else in a court proceeding, such as a litigation guardian.
The legal issues were two-fold: (1) since Stephanie was legally incapable, could she even bring a court motion on her own behalf?; and (2) can an incapable person’s preference for a different guardian be considered once they are already incapable?
This created a tension between autonomy and protection – respecting Stephanie’s wishes vs. following the strict requirements of the legislation and ensuring she is truly protected if still incapable. Ultimately, Stephanie’s motion was dismissed because an incapable person cannot unilaterally bring this kind of motion without being represented by another person.
The court noted that if Stephanie now had the capacity to decide who should manage her property, that raises the possibility she might not need a guardian at all. However, as long as the prior finding of incapacity stood, the Court had to treat her as unable to litigate on her own. The Court further noted that no one forced Stephanie to proceed in her own name – for example, the proposed new guardian could have applied to be appointed, or someone could have acted as her litigation guardian.
This decision is a cautionary tale that a finding of incapacity creates barriers: the incapable person cannot easily access the Court on their own, even to ask for a different guardian. It emphasizes that any such move must be done through proper channels (e.g., a litigation guardian or a new application by the proposed guardian) to protect the incapable person’s interests.
This case is important because it exposes a potential procedural pitfall in substitute decision-making: the very rules meant to protect incapable individuals can also limit their autonomy.
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