It is not uncommon for a person to execute their last will and testament many years, even decades, before they eventually pass away. It is also not uncommon for a person to move provinces, states, countries, etc. throughout their adult lifetime. In the estates context, that may result in various different scenarios in which related testamentary documents are executed in different jurisdictions. For example, a person may execute a will in one jurisdiction and after moving to another jurisdiction, subsequently execute a codicil to that will. That was exactly the case in the newly released decision of Re Pregent Estate, 2025 ONSC 7208.

In Pregent, the deceased died on February 8, 2024 in Kingston, Ontario. The deceased’s estate consisted entirely of personal property. The deceased’s daughter applied for a certificate of appointment of estate trustee, and the application was referred to Justice Mew pursuant to Rule 74.14 (4) of the Rules of Civil Procedure to consider whether the application raised an issue that requires determination by a judge. Evidently, as explained below, there was.

The deceased’s last will and testament was executed on April 12, 1973 in Pointe Claire, Quebec (the “Quebec Will”). The Quebec Will details that the deceased resided in Pierrefonds, Quebec at the time of its execution.

When the original Quebec Will was found, there was a handwritten “amendment” attached to the Quebec Will that was created to “reflect the present situation” (the “Ontario Codicil”). The Ontario Codicil was dated February 10, 1998 and the court was satisfied upon appropriate confirmation provided that it was in the deceased’s handwriting. While the Ontario Codicil did not specify the jurisdiction in which it was made, the court safely assumed and was satisfied that it was made in Ontario.

This proved to be a unique scenario, as when counsel for the applicant was asked to assist the court by confirming the court’s jurisdiction to consider the amendment of a Quebec will by an Ontario codicil, no case was found. However, counsel did refer Justice Mew to the following sections of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”):

• (36) (1) The manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in land, are governed by the internal law of the place where the land is situated.
• (36) (2) Subject to other provisions of this Part, the manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in movables, are governed by the internal law of the place where the testator was domiciled at the time of his or her death.
• (38) A change of domicile of the testator occurring after a will is made does not render it invalid as regards the manner and formalities of its making or alter its construction.
• (39)  Nothing in sections 34 to 42 precludes resort to the law of the place where the testator was domiciled at the time of making a will in aid of its construction as regards an interest in land or an interest in movables.

The court went on to explain that the concept of domicile, for the purposes of the SLRA, was as follows:

• “The concept of domicile coincides with the concept of a “permanent home”. The domicile of origin is received by operation of law at birth. A domicile of choice may be acquired if the person actually moves to another jurisdiction intending to remain there indefinitely. Acquisition of a domicile of choice requires both an actual move and the requisite intent to remain.”[1]

The court also referenced the case of Grillo Estate v. Grillo, 2015 ONSC 1352, in which Justice Newbould found that section 36(2) of the SLRA conferred jurisdiction for the court to deal with the validity of an alleged holograph will of an Ontario domiciled deceased which had been made in Italy (the deceased lived in Ontario but was on vacation in Italy when he made the alleged holograph will). The Italian holograph will purported to supersede an Ontario will which the deceased had made.

Despite living in Quebec at the time of executing her Quebec Will, the deceased and her husband (who predeceased her) had lived in Ontario for over 35 years before the deceased’s death. There was no question that the deceased was domiciled in Ontario when she died and for the past 35 or more years.

Prior to the deceased’s and her husband’s retirement, they operated cottage rentals in the Gananoque – Parkway area (just east of Kingston). During that time, they had owned houses in the Parkway and Kingston area where they lived. During the last 6 years of her life, the deceased resided at the Arbour Heights care facility in Kingston.

Justice Mew found that the Quebec Will was made in accordance with the laws of Quebec. In any event, the Quebec Will was also made in accordance with the laws of Ontario. Further, the Ontario Codicil was made in accordance with the requirements of a holograph will under Ontario law (which, for reference, can be found at section 6 of the SLRA).

Justice Mew took a similar approach to Grillo, and held that the court had jurisdiction to recognize and give effect to the Quebec Will, as revised by the Ontario Codicil. The court found that both the Quebec Will and Ontario Codicil were valid testamentary documents under Ontario law, and granted the application for a certificate of appointment of estate trustee using the combination of those documents.

[1] McCallum v Ryan Estate, [2002] O.T.C. 273, 114 A.C.W.S. (3d) 50, 45 E.T.R. (2d) 113 (Ont. S.C.J.), at para. 23.