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.
