Date: 18 Sep, 2023

The facts of this case can be found at Part 1 of this blog

The court reviewed as we have in other blog articles various areas of law such as the law of resulting trust and undue influence, the most important of which is the 2007 Supreme Court of Canada decisions in Pecore and the 1991 Geffen v Goodman Estate case.

The presumption of resulting trust is based on the foundation that the court’s starting position is there must be a contract and an exchange of value rather than a gift. However, the presumption can always be rebutted by evidence and there was clear evidence in this particular case that indeed the intention was to make an actual gift.   In other words the starting point is no one does anything for free, and if you say it was for free prove it, or lose.

The father also raised an ancient equitable legal doctrine known as unconscionable procurement. It is debatable whether or not this indeed is the law and the Ontario Court of Appeal in the similarly named Geffen v. Gaertner 2019 would not  confirm that unconscionable procurement indeed is valid law. The Nova Scotia court in Fairfield described the doctrine as follows; the doctrine of unconscionable procurement applies where the party seeking to set aside a wealth transfer transaction is able to prove two things.  A person obtains a significant benefit from another by gift or other voluntary wealth transfer and the person obtaining the enjoyment of that benefit was actively involved in procuring or arranging the transfer from the maker.

When those two elements are present, presumption of fact operates that allows the court to infer that the transfer was not properly explained or fully understood by the maker. The court is entitled to scrutinize the situation with its moral sense awakened with a view to deciding whether the maker fully appreciated the effect nature and the consequence of the transaction.

In as much as the doctrine is one of equity, the court is ultimately being asked to decide whether the transaction is conscionable or unconscionable. The onus is on the attacker to prove that the maker did not enjoy the full appreciation mentioned above and that as a result is unconscionable.   In plain English and as an example.  Adult son takes Dad to his lawyer and has Dad sign documents gifting Son a large bank account.  Son’s sister learns years later of this “Gift” and claims unconscionable procurement.  It is sister’s job to get her foot in the door.

In essence, there may have been both doctrines at play, namely unconscionable procurement and further the doctrine of resulting trust.  However both of them merely aid the court when there is a lack of clear evidence one way or the other.  In this particular case, the evidence was clear to the point and we simply had a father who had changed his mind after being warned repeatedly and independently of the consequences of his actions. Sorry no take backs.


Date: 18 Sep, 2023


We have the elsewhere discussed the legal components of a gift and its ramifications. We suggest our readers simply use the search bar on our website to find a number of blogs touching on “gifts”.

A common fact scenario when a court examines the issue of a gift arises from elderly parents being preyed upon by their greedy children or similar abuses. In the interesting British Columbia Court of Appeal decision in Sandwell v. Sayers, a April 2023 decision of the court we have a set of circumstances that to the average reader would clearly seem to be a gift that had been made in the fullest and eyes wide open of circumstances. The difficult father had arranged to make a gift of a 1/2 joint tenancy interest in his home to one of his adult daughters. This could only be done with the services of a notary public in British Columbia, who took great care to ensure that the father knew what he was doing. The notary public made the father think about the transfer, had explained the ramifications of the transfer, made the father sign various documents confirming to the father the legal effect and irrevocability of the gift, and despite all of these warnings by the notary public, the father proceeded and signed the transfer of the half interest in his home gifting it to one of his daughters.

On December 4, 2020, the father met with the notary public and signed the documents relating to the transfer. The notary dragged his feet to ensure that the father again had been given sufficient time to ensure that his intentions would remain unchanged and the documents effecting the transfer were not registered for almost another week. Eleven days after the transfer was registered, the father contacted the notary public and asked for the transfer to be unwound.

The trial court was not impressed by the father and dismissed his application to set aside the transfer. Father was still not satisfied and appealed to the British Columbia Court of Appeal. The Court of Appeal was similarly not impressed and in this author’s view, simply said sorry no take backs, you knew what you were doing and it is too late.  The court reviewed as we have in other blog articles various areas of law such as the law of resulting trust and undue influence, the most important of which is the 2007 Supreme Court of Canada decisions in Pecore and the 1991 Geffen v Goodman Estate case.

The law is described more fully in part 2 of this blog.


Date: 15 Sep, 2023

The Honourable Justice Chang in July of 2023 rendered his decision in the case known as the Estate of Harold Franklin Campbell.

The case centered around section 19(1)(b) of The Succession Law Reform Act that reads “a Will that has been…revoked is revived only…by a codicil that shows an intention to give effect to the Will.. that was revoked”.

More simply put, a Will that has been cancelled can be brought back to life if it is done by way of a written amendment known as a codicil and in accordance with the formalities of The Succession Law Reform Act that shows an intention to bring the Will back to life.

As we have discussed in other blog articles commencing January 1, 2022, the law was amended to create what this author calls the horseshoes rule. All the formalities under The Succession Law Reform Act  “SLRA” are not absolutely necessary as long as you get close enough and a court can be convinced that the document was indeed a reflection of what the deceased wanted within their Will.

The facts are relatively simple.  Harold Campbell made a Will, and named his children as his beneficiaries. He remarried and under the law as it then existed (it no longer does), the Will was revoked also known as cancelled by that subsequent marriage. After the date of marriage, Harold signed two notes, which he signed and stapled to the inside cover of his original pre marriage Will.

The judge by reading the two holographic aka handwritten notes, thought it was quite clear that these notes were to be amendments to the cancelled Will and showed an intention by Harold that he still wanted to give effect to the old pre marriage Will.

In other words, it was clear to the presiding judge that there was no difficulty fitting within the four corners of 19(1)(b) of The Succession Law Reform Act.

The judge however felt that the horseshoe rule, more formally known as section 21.1 (2) did not apply. For once a judge felt that this was a bridge too far and could not be used to bring back a Will from the dead.

An interesting small corner of the law of wills and estates, but an important one.

Justice Charles Chang born and raised in Toronto with primarily a background in commercial litigation and was only appointed April 4, 2022. In other words, fourteen months into the job, an interesting decision by Justice Chang.

Fixing a Will After Death – The Horseshoe Rule

Fixing a Will After Death – The Horseshoe Rule
Date: 13 Sep, 2023

The COVID-19 virus has changed the world as we have known it, and those changes have reached into the previously set in concrete laws dealing with Wills and Estates.

Estates of anyone who died after January 1, 2022 may take advantage of an amendment to The Succession Law Reform Act. Specifically, section 21.1 which we have already canvassed in earlier blogs such as Changes to the Law of Wills and Surrogate Will signing Part 3, permits a court to after the fact fix a Will so long as the court is convinced that the document before it sets out the testamentary intentions of a deceased. In other words, if the piece of paper, even though improperly signed or drafted, does indeed properly reflect what the deceased wanted to happen with their assets upon their death it can be deemed to be their will. I have described this as changing the law of wills to into a game of horseshoes. In this author’s view, this changes the law from one of certainty when all one must do is follow the very few formal rules set out in The Succession Law Reform Act into now a new arena and money-making process for lawyers.

There have been almost no decisions under this under this new law, however the Honourable Justice Frederick L. Myers seems to have attracted the litigation that does exist in this area.

Justice Myers in his brief decision in Vojska v. Ostrowski decided that a Will that was improperly signed solely due to the negligence of the lawyer that drafted and witnessed it, could be remedied under this provision.

If one has ever signed a Will before a lawyer, the scene is usually the following. Commonly you will have a husband and wife, the lawyer and a clerk. There are numerous documents including Powers of Attorney, Directions and the Wills and a Joint Retainer Agreement to be signed. These if careful attention is not paid, can float around and it is not impossible unless a strict routine is imposed for a signature to be missed.

This author early in my career was embarrassed when a client pointed out that my signature had been missed.

From that day onward, my routine is quite strict. My signature as a witness does not happen until it has been signed by everyone else, so that when it is my time to sign, I can see that it has already been executed by all but myself.

Unfortunately, in the above noted case, the lawyer involved was not as detail oriented as he should have been and he forgot to witness the Will of the deceased. It was signed by everyone but he.

Under the law prior to January 1, 2022, the remedy would have been a lawsuit defended by the lawyer’s negligence insurer, who would have made-up for any loss.

Justice Frederick L. Myers felt that this circumstance perfectly fit within section 21.1 (1) of The Successional Law Reform Act. There was a fair amount of evidence, that this was simply a screw up on the part of the lawyer and that the intent was for the documents signed by the now deceased was indeed meant to be her Will. Justice Meyers stated “…part of the goal of paying a professional is to produce valid outcomes and to avoid the common errors that lack of ordinary care produces”.

A bit of background on Justice Frederick L Myers with whom the author shares a forename. Born and educated in Toronto, the distinguished jurist clerked at the Supreme Court of Canada for Chief Justice Bora Laskin. Serious credentials in the legal field. Justice Frederick L. Myers also obtained a Masters of Law from Harvard, which he proudly cites as his most distinguished credential.

Justice Frederick L. Myers also made companion decisions in Cruz v. Public Guardian and Trustee in which he again held that the facts met the test under the amended Succession Law Reform Act. Justice Cruz also further made some comments upon the new law in the decision of White v. White.

The moral of the story is that there is a methodology for fixing a Will, if it meets the appropriate test. However as the author stated earlier, with just a little bit of care and attention to detail, a client can take advantage of the relatively inexpensive cost of having a lawyer prepare a Will and the all important accompanying Powers of Attorney. Otherwise, people continue to find themselves under the thumb of a pennywise pound foolish decision.

Preparation of Wills and Powers of Attorney prepared under the 1995 Substitute Decisions Act

Preparation of Wills and Powers of Attorney prepared under the 1995 Substitute Decisions Act
Date: 28 Aug, 2023

We at Dale Streiman Law are often contacted asking for information with respect to preparation of Wills and Powers of Attorney prepared under the 1995 Substitute Decisions Act.

Whether you are a young or an older person, preparing Powers of Attorney and Wills is a necessary requirement for estate that that all clients must complete.. We stress this because we have seen so many times the mess that is left behind when an individual doesn’t take care of their affairs and a family is left trying to put the estate assets and other issues in order.

This article is not about your Will, nor is it about preparing Powers of Attorney and not just using printed forms. Often clients obtained the kit form produced by the Ontario Government or other publishes using American law and not Ontario and Canadian law applicable to the assets and property and health of the clients here in Ontario. Wills are most important to ensure that if you have assets, they are left in a disposition or bequest of the testator or will maker’s only volition and decision so that other parties, family members will not challenge the provisions made in the Last Will and Testament of the client, the Will Maker. Secondly, if clients are elderly and have paid off assets, a house nowadays worth $950,000 to $l.5Million, and other assets, savings, bank accounts, investments, Tax Free Savings Accounts (TFSAs), pensions and Registered Retirement Savings Plans (RRSP’s) or if older than 71 years of age, Registered Income Fund (RIF), then it is important to have an Estate Plan and also to avoid the incurring of large probate fees, i.e. the child(ren) being appointed as Estate Trustee(s), Executor(s) under the parent’s Last Will to distribute and transfer the assets to the beneficiaries under such Will on the parent’s passing. Often with value of assets including real estate assets expected to increase in the Greater Toronto area and surrounding cities and towns, such probate fees can be exorbitant such as $17,000 to $25,000 more or less to get the child(ren) appointed by the Court as Estate Trustees to deal with and distributed the assets. Dale Streiman Law with its partners and staff specialize in an Estate Plan to reduce or eliminate Probate Fees. Please consult us if this is relevant. There are many other considerations, i.e. assets out of Ontario are not usually covered and recognized by an Ontario Will and we recommend to our clients that they get such wills where such out of Ontario assets are located provided in a Will prepared in such jurisdiction or country by a local lawyer. Naming a relative who lives outside Ontario raises the issues of posting insurance bonds with the court if application for probate of the Will is required.

As to the aforesaid Powers of Attorney for Personal Care/Health and for Property completed in Ontario under the 1995 Substitute Decisions Act, the estate planning lawyers will ensure that decisions made by the appointed attorneys of the family member will be followed. If not followed, examples have arisen when recently when a man suffered a brain aneurism, and his wife was put in the horrible position of having to decide whether to end all life support, effectively leading to the death of her husband. The husband should have made that decision himself earlier, and spared his wife the horror and guilt. How do we do that?

There are two kinds of Powers of Attorney (POA) that each client should have prepared and executed. The Property Power of Attorney for assets and property in Ontario is for financial matters. This Power of Attorney allows the appointed attorney to conduct all financial affairs, as if he or she were that person. This would help, for example, in a case where a person was disabled, physically or mentally e.g. Alzheimer’s disease or Dementia, and couldn’t sign cheques, sell property or manage their property. Otherwise if the client is disabled, the Public Guardian and Trustee of Ontario assumes control over the assets of a disabled individual. You may wish with such power of attorney to include restrictions and include these details in the legal document, i.e. this Property Power of Attorney.

The Property Power of Attorney for Personal Care or Health needs much consideration. This is where you need to think about all of the potential problems that could occur, and how you want to make decisions on what happens in advance if your health, physical or mental health deteriorates. We have a living will which can stated as follows: I do not wish to be removed from my residence regardless of the costs unless my appointed attorneys make such decision.

Further I do not wish to be connected to life support or be kept alive for any significant period of time if I am in a vegetative state or I am being kept alive by artificial means, unless there is a reasonable chance of my recovery such that I will no longer be in a vegetative state or kept alive by artificial means. Where there is no reasonable chance of recovery, I direct that I be allowed to die and not be kept alive by medications, artificial means or “heroic measures,” and I direct that any such medications, means or measures that would keep me alive in those circumstances be withheld or withdrawn. I do, however, ask that medication, means and measures be mercifully administered to me or medical or surgical procedures be taken to may shorten my remaining life. There s also medical induced death that has been recently in the news.

There are many considerations for this type of power of attorney for Personal Care and Health: for example Health care, nutrition, shelter, clothing and hygiene. At our firm if there are issues, we refer our clients to their family doctor, a psychiatrist/psychologist and doctor specializing in aging e.g. a Gerontologist available to review these issues with the client so that we might incorporate their desires into their Personal Care Power of Attorney.

Note if you do not have such power of attorney, there can be a panel of doctors at the hospital with a possible government official to make such personal care and health decisions in the absence of having such Power of Attorney for Personal Care and for Health decisions.

Please review the above and we will be pleased to meet with our clients to review their needs for estate planning.

480 Main Street North, Brampton, Ontario L6V 1P8
Office : 905 455 7300


Power of Attorney
Date: 27 Apr, 2023

This is a more detailed than normal blog article that canvasses the issues of attorney compensation, and reimbursement for the attorney’s legal and professional expenses/fees for preparing attorney accounts.  Much of the credit goes to our associate DeAndra Moore.

Appreciate that the word “Attorney” here is not another name for “Lawyer” but rather the title of the person whom the Grantor of the Power of Attorney gives the power to.


Generally speaking, the Attorney may annually receive 3% of all of the income of the Grantor, plus 3% of the money being paid out on behalf of the Grantor PLUS 3/5th of 1% of the assets of the Grantor.  See below for the many conditions that attach to that generalization.

Attorney Compensation

a. The starting point is of course Looking at the Power of Attorney (“P of A”/ “POA”) document itself.  Many precedents state that “any work done in connection with the POA document by the attorney, as agreed upon between the attorney and the Grantor from time to time, or in the event of the Grantor’s incapacity, will not be compensated out of the Estate”.  This is largely a fill in the blanks paragraph that the author does not use.   A Power of Attorney especially one for Property is an extremely onerous obligation.  It can not only be very time consuming but is a fiduciary obligation.  In simple terms, an obligation of the highest legal and moral order.

b. In the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) it states the following:


40 (1) A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.  1992, c. 30, s. 40 (1).


(2) The compensation may be taken monthly, quarterly or annually.  1992, c. 30, s. 40 (2).


(3) The guardian or attorney may take an amount of compensation greater than the prescribed fee scale allows,

(a)  in the case where the Public Guardian and Trustee is not the guardian or attorney, if consent in writing is given by the Public Guardian and Trustee and by the incapable person’s guardian of the person or attorney under a power of attorney for personal care, if any; or

(b)  in the case where the Public Guardian and Trustee is the guardian or attorney, if the court approves.  1996, c. 2, s. 27.

Effect of power of attorney

(4) Subsections (1) to (3) are subject to provisions respecting compensation contained in a continuing power of attorney executed by the incapable person if,

(a)  the compensation is taken by the attorney under the power of attorney; or

(b)  the compensation is taken by a guardian of property who was the incapable person’s attorney under the power of attorney.  1992, c. 30, s. 40 (4).

c. The SDA regulations (O. Reg 26/95 General) also state:
1. For the purposes of subsection 40 (1) of the Act, a guardian of property or an attorney under a continuing power of attorney shall be entitled, subject to an increase under subsection 40 (3) of the Act or an adjustment pursuant to a passing of the guardian’s or attorney’s accounts under section 42 of the Act, to compensation of,

(a) 3 per cent on capital and income receipts;

(b) 3 per cent on capital and income disbursements; and

(c) three-fifths of 1 per cent on the annual average value of the assets as a care and management fee.  O. Reg. 26/95, s. 1; O. Reg. 159/00, s. 1.

2. The prescribed amount per page to be paid for photocopies under paragraph 5 of subsection 83 (4) of the Act is 50 cents.  O. Reg. 26/95, s. 2; O. Reg. 272/15, s. 1

d. Some case law to consider:

Aber Estate, 2013 ONSC 6363

–   Justice Brown confirms that the Court, in considering compensation, must be satisfied that compensation based on the prescribed fee schedule would be fair and reasonable. (Same governing principle as Executor’s compensation.)

To determine what is fair and reasonable, Justice Brown referred to the 1905 Ontario case, Toronto General Trust Corp v. Central Ontario Railway, which sets out five factors:  1) size of the trust; 2) care and responsibility involved; 3) time occupied in performing the duties; 4) skill and ability displayed; and 5) success of the administration.  In other words keep careful records of your actions and the time and expense incurred in acting as an attorney.  You never know when someone at a later time will question what you did as an attorney.

Re Reimbursement of Legal and Professional fees to Prepare Accounts

e. Attorneys are not required to pass their accounts (other than as requested by the living agent, or as outlined in O. Reg. 100/96: ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS to the SDA, ss 4 – 6). They may otherwise either be compelled to pass them, or elect to do so informally (to save time and reduce costs for the purposes of negotiation and settlement).

f. Attorneys, however, are required to keep accounts as they manage the property, so those accounts should already exist. (O. Reg. 100/96: ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS to the SDA, s. 6) Based on this, if the attorney now needs someone to prepare informal accounts, that arguably is their own fault and responsibility, and will be their own cost (which they would have otherwise been required to bear to prepare the accounts they were required to keep).

g. Having said that, once COMPELLED to pass accounts, the court-approved format and procedures apply.

h. Per Rule 74.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) R. 74.17 (Form of Accounts) and R. 74.18 (Application to Pass Accounts – Material to be Filed) apply to  accounts of estate trustees and, with necessary modifications, to accounts of trustees other than estate trustees, persons acting under a power of attorney, guardians of the property of mentally incapable persons, guardians of the property of a minor and persons having similar duties who are directed by the court to prepare accounts relating to their management of assets or money.

1. Rule 74.17 (1) (i) includes a statement of compensation

2. R.74.18  ss. (10) and (11) address the costs the attorney can claim for preparing and passing the accounts, thereby allowing your client to seek costs accordingly (this includes increased costs that are greater than the prescribed amount, but seeking those comes with its own set of procedures which are also outlined in the Rules).

Based on the above, if an attorney is willing to provide an informal accounting, the attorney may be expected to bear that cost themselves because they were always required to keep an accounting even though not required to pass one. This does not preclude one from making an arrangement with the opposing parties to fund the cost of preparing the accounts or to be reimburses for the Attorney’s costs.

Otherwise, and of course taking costs into consideration, the Attorney may wait to be compelled to pass the accounts in the court approved format since that way, the Attorney has more of a guarantee that at least some of the Attorney’s legal and professional fees may be reimbursed. If the Attorney is already going to put in the effort to prepare accounts that approximate the court-approved format, this option may make the most sense.

Overall, more case law research could reveal any instances where an attorney who was similar situated was able to circumvent the rules outlined above.

Links to the statutes, regulations and case mentioned:

–         The SDA:

–         O.Reg 26/95:

–         O.Reg 100/96:

–         The Rules:

–         Aber Estate:

Deed of Gift – A Gift at a Discount – or Partial Payment

deed of gift
Date: 09 Mar, 2023

Elsewhere we have discussed Deeds of Gift. I direct our loyal readers to the blog titled “Start with no one gets anything for nothing…”.

One of the main purposes of a deed of gift is rock solid proof that indeed a gift was intended, and also to take advantage of various provisions of the Family Law Act.  Specifically, to the degree possible by the donor to protect the recipient from any claims by an ex-spouse. This is not perfect, but it is the best that the donor can do.

To give a simple example, if a parent wishes to gift $100,000 to a child, one of the best ways of protecting that money from a claim by an ex spouse is for it to be held solely in the name of the child, not used to buy or improve a matrimonial home and the child has evidence that indeed a gift was intended.

However, there are tax ramifications to deeds of gift and one must be very careful to appreciate them. Advice by a competent accountant would be very helpful in this situation.

An example of a scary pitfall is when a parent wants to gift a property at a discount to a child. As an example, selling/gifting a $1,000,000 rental property for $400,000. If the agreement called for that type of payment, a sinister tax circumstance would arise. Namely, the government would take double its pound of flesh. The government would ignore the actual price paid and simply deem that the rental property had been sold for its true market value namely $1,000,000.  If not a principal residence, this would be a taxable disposition.

The child in turn would not be able to use an adjusted cost base of $1,000,000, but rather only the $400,000 that was paid. A parent simply applying a nominal price of one dollar would be even more horrendous.

On the other hand, if the transfer is a clean and simple gift, there is a deemed disposition at fair market value. The recipient will have a cost base of fair market value resulting in no double taxation. One option is simply gifting a certain amount of money to the child and let the child use the funds received to buy the property from the parent at its real market value.

Simply put, no discounts in a Deed of Gift.  There are work arounds, but they must be discussed with your accountant and Estate lawyer.

These are all important estate planning concerns and must be kept in mind when thinking about gifting real estate or indeed any capital property to family members.

Surrogate Will Signing Or How Does Someone Who Is Paralyzed Sign A Will – Part 3

Surrogate Will Signing 3
Date: 20 Feb, 2023

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.

Surrogate Will Signing Or How Does Someone Who Is Paralyzed Sign A Will – Part 2

Surrogate Will Signing 2.
Date: 20 Feb, 2023

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.

Surrogate Will Signing Or How Does Someone Who Is Paralyzed Sign A Will – Part 1

Date: 20 Feb, 2023

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.