When drafting a will in Ontario, there are a number of formalities that must be followed. It’s not an extensive list. The testator must sign a will in the presence of two witnesses who also have to sign it. In addition, the testator must be at least 18 years old. There are situations when a will not signed in the presence of witnesses, such as a handwritten will drafted in private, can be considered valid (this is known as a holographic will). While the details of what is needed to make a will valid are not extensive, people typically follow a number of best practices, including a statement that the present will result in the revocation of any existing wills.
After all, one of the main reasons people create a will is to minimize the chance of estate litigation, and having multiple wills can complicate that. Of course, the law is full of situations with nuanced details that can sometimes confuse people about what should be done. Take, for example, the notion of bringing a revoked will “back to life.” It’s probably not something most people will have to deal with, but it recently came up in a decision issued by the Ontario Superior Court of Justice.
Father revives previously revoked will
The court referred to the parties by their first names to more easily identify the narrative of the facts leading up to the litigation. Harold, Christopher, Lisa, and Carol were involved in the application. Harold was the father of Christopher and Lisa and was also the testator. He was born in 1941, and Lisa and Christopher were born during his first marriage. After his first wife died, he executed his last will and testament on March 15, 1996 (the “Will”). The Will named Christopher as the estate trustee and Lisa as the alternate estate trustee, and were equal beneficiaries of his estate.
On October 28, 2000, Harold married Carol. In Ontario, the Succession Law Reform Act (the “Act”) states that when someone with a will gets married, their existing wills are considered revoked. This is no longer the case, but it was at the time. In the years leading up to their marriage (2016 and 2017, to be exact), Harold made two handwritten notes that he signed and stapled to the Will. One of the notes stipulated what he wished to happen to his remains upon his death, while the other note carved out pieces of his estate that he wished to give to Carol. They were considered valid holographic codicils. The question before the court upon Harold’s death was whether or not the will was revoked. It if was, the codicils that Harold attached could be considered valid. If the will was revoked, the codicils and the details contained therein were of no force.
Should the will be considered valid?
There was not much disagreement amongst the parties. Lisa and Carol took no position but did confirm the facts detailed above. Christopher submitted that the court should order that the holographic codicils should have revived the will. He asked the court to establish the following:
a. A finding be made that Harold intended to rely upon the Will;
b. An order be made under s. 21.1(1) of the Succession Law Reform Act that the Holographs are valid and fully effective as revivals of the Will;
c. A finding that the Holographs, therefore, meet the technical requirements of the Succession Law Reform Act; and
d. If the Holographs still do not meet the technical requirements of the Succession Law Reform Act as renewals of the expired Will, a further order be made under s. 21.1(1) that they do meet those requirements.
The court referenced the Act as it existed in 2016, which, as we mentioned before, stated that marriage would revoke any existing wills, with another section that is still in the Act stating that a court may allow a will to be considered revived if the court is considered the testamentary intentions of the deceased lead to their conclusion that was what they would have wanted.
The court determined that the will should be considered valid but said it arrived at that conclusion differently than Christopher suggested, stating that a four-step process was unnecessary. The court wrote that it didn’t have to consider whether the holographs were valid revivals of the will. Instead, the court wrote,
“the Holographs are codicils to the Will and those codicils show that Harold intended to give effect to the Will when he made the Holographs. Nothing more is required for the operation of s. 19(1)(b) to revive the revoked Will.”
This led to the court explaining something relevant in many areas of law, writing that when the courts interpret statutory law, the language of the law must be read “in their entire context and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” This allows the court to make decisions on a case-by-case basis when trying to determine if an otherwise invalid will be enforced. This is coupled with another theme we often see in law, including contract law, which is the importance of the party’s intentions. The court wrote that the intention of the testator is of paramount importance. In this case, it seemed clear that the testator’s intention was for the will to be revived.
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