Substantial Compliance – Fixing a Defective Will After Death

Part 3

In the first 2 parts of this commentary on the Meyer case ( Part 1 and Part 2 ) which primarily discusses a surrogate signing a will, we saw how a “Probate” application failed.  However when one looks at the case from a present day view point there is a further twist.  As of January 1, 2022 ( 11 years after the Meyer case ) the law was changed on the formality of wills.

In this author’s view it became foolishly a game of horseshoes.  A very expensive game of horseshoes.  Referred to in the legal world as substantial compliance, the author refers to it as “close enough”.  The Succession Law Reform Act (the primary but certainly not the only law governing wills ) at section 21.1(1) in essence states – If you can convince a judge that the document – which does not meet the requirements of the simple formalities for a will set out in the Act – and really they are not numerous – but can show that the defective document is what the Testator wanted his or her will to say – the judge can order that the document is a valid will.  There are no Ontario decisions on the subject yet.  But would the Will questionnaire completed by Mr. Meyer meet the new test?  Of course Meyer was decided in 2011 and the law was changed 11 years later.

So in conclusion, there is a ready methodology of meeting the problem of physical limitations. However, the drafting lawyer needs to be careful to ensure that there is evidence, and that all the other factors set out in The Succession Law Reform Act are met. This is not a step to be taken by someone without a great deal of experience in the law of Wills and Estates.

A Promise to Make a Gift

Part 2

In Part 1 of this blog we looked at the Meyer case and examined getting someone else to sign the will on behalf of a disabled Testator.  It was part of an application for “Probate” that failed.

And what of the written promise to transfer the house to the former girlfriend? That unfortunately failed as there was no consideration for the promise.

Consideration, is a very basic concept of a binding agreement. I give you X and in return you give me Y. It matters not whether or not X and Y are of equal value, there simply must be an exchange. There was no exchange in the written promise. Further, for there to be a valid gift which we discuss in other blog articles, titled “Gift Gone Wrong” , one needs to be numerous factors, including delivery. There is no gift until the object is actually transferred.

In this 21 page decision, one cannot help but feel empathy for the former girlfriend, who had been strung along by her former partner.  From a distance, it was obvious that Clark Meyer’s repeated promises and excuses showed that he had no intention of ever fulfilling the promise. That was obvious to Justice Sosna and played an important part in the decision he reached.

Part 1

The Succession Law Reform Act, section 4 (1) (a) sets out one of the basic requirements of a valid Will, specifically  “…a Will is not valid unless it is signed by the testator or by some other person in his or her presence and by his or her direction;”.

Testator is the formal name of the person making a will.

It is not unusual for our office to be asked near the end of someone’s life to prepare a will for them while they still have the mental capacity to make a Will, but they have lost the use of their hands. Numerous neurological and muscular diseases can render one physically incapable of signing their name or even making a mark yet still leaving them with the mental capacity to instruct and meet one of the tests for a valid Will. In this author’s practice, this scenario has arisen more frequently than one would have thought.

This situation has rarely been reviewed by the courts and on a single occasion in Ontario. In the 2011 Ontario Superior Court decision in The Estate of Clark Ross Meyer, the Honorable Mr. Justice Alexander Sosna, within three years of becoming a judge, had to rule upon a near soap opera like fact situation.

The former common law spouse of the late Clark Meyer had been promised repeatedly that a house owned by her former paramour would be transferred into her name. The relationship only lasted a few years and then Mr. Meyer moved on, subsequently marrying the woman that became his widow, Mrs. Sylvia Meyer.  The former girlfriend was trying to “probate” the contested will signed by Mr. Meyer.

Clark Meyer not only promised a house to his former girlfriend, but he even entered into a rental amending agreement in which he again made the same promise.

The former girlfriend was strung along literally for years by promises and excuses from Mr. Clark Meyer. Mr. Meyer contracted AIDS and was soon close to leaving this earth. At his request arrangements were made for a lawyer to attend at the bedside of Mr. Meyer where he was to sign a Will in which he left to his former girlfriend the house that he had promised numerous times.  He completed a will questionnaire at the lawyer’s request.

Mr. Meyer was too ill to physically sign the Will and it was signed on his behalf, and supposedly at his direction by a neighbour of Clark Meyer acting as his surrogate.

The case is almost voyeuristic in its description of the life of the late Clark Meyer.  As is not uncommon in the law, bad facts make for bad law.

There is no specific or magic wording to place at the end of a Will when it is signed by one’s surrogate. However in Meyer v. Meyer, Justice Alexander Sosna emphasizes the importance of formalizing by way of an Affidavit by the surrogate and by any other means possible that all of the factors called for in The Succession Law Reform Act are met.   How was the direction given by the testator to the neighbour to sign on his behalf? What evidence is there that that direction was communicated, in other words how did the neighbour know that the testator wanted the Will signed? How did the surrogate and indeed all of the parties involved, including the lawyer that drafted the Will know that the testator met the legal and mental test for a valid Will? What evidence was there that the testator understood what he was doing and the meaning of the effect of the document?  Did the testator have the requisite mental capacity to make a Will at that time?

The facts are complicated and morally difficult.  They revolve not only around the issue of the adequacy of surrogate signing, but also on the enforceability of the written promise to transfer the house to the former girlfriend.

Justice Sosna had to play the tough guy.  He felt that Clark Meyer’s mental and physical capacity had deteriorated to such a degree by the time the Will was signed by the surrogate, that Clark lacked the appropriate mental capacity. Justice Sosna also criticized the almost total lack of any evidence that the testator Mr. Clark Meyer knew in the fullest sense what he was doing and what he was supposedly directing the surrogate to sign.

I tip my hat to the drafting lawyer for coming up with a scheme to supposedly give direction and instruction from the testator to one of the witnesses to the Will. The lawyer instructed Mr. Myers’s mother, who was also present at the will signing to hold Mr. Myers’s hand.  The lawyer told Mr. Meyer to squeeze his mother’s hand if he approved of each provision in the Will as the lawyer read those terms out.  However, for some reason the former girlfriend failed to call the testator’s mother to give any evidence and there was no evidence from her that she actually established any means of communication with her son. Further, the lawyer, the former girlfriend and indeed the wife, all of whom were present at this bizarre death bed scene, gave no evidence on the point of whether or not the mother’s hand was even being squeezed by Mr. Meyer.

It is for another day and another fact situation to determine whether or not the hand squeezing process would have been sufficient.

It makes common sense that a Will only applies to the net assets owned by the Will Maker, aka the testator, that he or she had on the date of their death.

However, it is not unusual for even experienced Wills and Estates lawyer to ignore the effect of the Succession Law Reform Act section 22.  It is a relatively brief section and we set it out in its entirety.

Will to speak from death

22 Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to,

(a)  the property of the testator; and

(b)  the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20 (2).  R.S.O. 1990, c. S.26, s. 22.

Unless the Will strongly points to being interpreted as of the date of writing rather than the date of death, almost all provisions of a Will are interpreted as if the Will was written the day the Will Maker died.

This lens can have an interesting effect and this was clearly shown in the Ontario case that found its way all the way to the Court of Appeal titled Van Sickle Estate v. Van Sickle.

The Will was written in 1985 when the Will Maker along with her husband owned a fully operating farm. One of the children worked far harder than his siblings in working the farm. However over time, the farm was converted into a rental property whereby it was rented out for others to farm. The son who had devoted, it appears the majority of his life in assisting his parents in operating the farm, was granted an option to purchase the farm at a far lower than market value price.

The plain reading of the Will seemed to grant that option only if it was an ongoing farming operation, rather than the situation that existed as of the date of death.

At the trial level, the judge used the common sense interpretation of the appropriate clause within the Will.

However in 2022, the Ontario Court of Appeal brought everyone back to the actual law, namely the above quoted section of the Succession Law Reform Act. If one interpreted the Will as if it was written the day before death, the farm still met the definition contained within the four corners of the Will and as such the trial decision was overturned.

Section 22 is important and when a Will is being drafted, one needs to take a close look at what may occur with the passage of time.

A careful lawyer will generally object to specific bequests (gifts) of assets to specific people as one never knows what assets one will own on the date of your death.

Conversely, if the Will Maker insists on leaving specific assets to specific people, one needs to spend some time looking at all the possibilities before drafting a Will.

A great deal of time and money was spent on the Van Sickle case, which could easily have been avoided had a hypothetical question been put to the Will Maker at the time of that the Will was written.

In another blog article we reviewed the unhappy fact situation set out in the Selkirk case

The court examined the law on whether or not individuals using a Power of Attorney can enter into a Trust Agreement on behalf of the donor of the Power of Attorney. There were three competing decisions across Canada. However, the theme of those three decisions is exactly in accordance with our firm’s own practice. An attorney can only do those things that are in strict accordance with the terms of an existing Will and as such are not creating a testamentary document, (usually a will).  In plain English, you cannot use a Power of Attorney to write a person’s Will. This is both prohibited under the common law i.e. judge-made law and under the provisions of The Substitute Decisions Act.

But you can create a Trust such as the ones we commonly do under the Full Monty using the Power of Attorney if it is completely in accordance with the Terms of an existing will.  You can facilitate the terms of the will, but you cannot change its terms or effect.

At our law firm we have devoted a fair amount of time to perfecting our strategy to avoid or eliminate probate. We have called that strategy the “Full Monty” and it is explained elsewhere on this website.

Learn More : A Strategy To Reduce Or Eliminate Probate Fees – Fully Monty

Learn More : The Full Monty

In the May 2, 2022 decision of Madame Justice Sally Gomery of the Ontario Superior Court of Justice she explored this issue.

Sheila Selkirk died and left behind a set of dysfunctional children. What should have been resolved over a cup of coffee instead became a long winding road of disharmony, distrust and division.

Some interesting and novel legal arguments were made, but quite frankly from this observer’s perspective, the position being taken by the unhappy beneficiary siblings was a loser from the very start.

However, the case does stand for the proposition that properly appointed attorneys under a Power of Attorney for property can enter into a trust declaration for property owned by a mentally incompetent donor. That is more fully explored in our Blog titled  – Can a Power of Attorney be used for entering into a Trust agreement including the Fully Monty.  That is more fully explored in our Blog titled – Can a Power of Attorney be used for entering into a Trust agreement including the Fully Monty

Let’s break this down into a concrete example such as in Selkirk so that one can understand this legal mumbo-jumbo. We have a widow who owns a house and she has a number of children. She already has a Will in which while she largely divides her estate equally amongst her children, but she wants a loan made to one of the children to be repaid before they get their share. The mother told a few of her children that she wanted to avoid probate and its expenses.  However the mother lost her mental capacity shortly before she died and was not able to sign anything.

The brothers went to see their lawyer who prepared a Trust Agreement. The Trust Agreement unfortunately was far briefer and less detailed than the document that our office prepares. The Trust Agreement simply indicated that two children were to be added as joint tenant owners of the home in addition to the ailing mother. The brothers using the Power of Attorney granted to them signed on behalf of their ailing mother. The trust declaration simply indicated that their mother remained the sole beneficial owner, but did not say what was to happen upon her death.

The unhappy beneficiaries after mom died tried to argue that she had explained and promised to all that when she died she wanted her house sold and the net proceeds simply divided equally amongst all of the children.

This argument was doomed to fail from the begin.  Nothing was in writing, the Will was not changed nor could the mother’s existing Will have been changed at this stage of her life.

The case is littered with terrible cross allegations between the siblings of theft and other misdeeds and one cannot but help be saddened and shake their head over a family torn apart over a modest amount of money. The house in question upon sale only realized $326,000.  Divided among six people, this is hardly life-changing. On the other hand, it does provide an interesting factual backdrop, but at what emotional expense.