Date: 05 Oct, 2023| Author: Fred Streiman

In other blog articles, we have touched on what this author calls the horseshoe rule of Wills. Prior to January 1, 2022, for a Will in Ontario to be found to be valid, it had to meet the minimal requirements set out in The Succession Law Reform Act. However, since the onset of COVID, the law of Wills in Ontario have undergone a relative revolution. One of those revolutionary enactments was section 21.1 of The Succession Law Reform Act. It permits a judge if satisfied that a document accurately sets out what a person wanted in their Will, to certify that to be a valid Will of the Will Maker, even though it fails to meet some of the requirements of the law.

Also as discussed in our other blog articles, Justice Fred Myers of Toronto seems to have become a magnet for decisions in this soon to be exploding area of law.

I remind our readers that I have spoken repeatedly about how misguided section 21.1 is. It is a magnificent way of clothing what appears to be a flexible rule of Will interpretation, from what in reality is a money-making scheme for lawyers. Far be it from me to complain.

Justice Myers in the very interesting case of White v. The Estate of Violent White, a decision released on June 21, 2023, actually addresses a completely different issue, namely whether or not a party having a financial interest in an estate can go on a fishing expedition and at least ask to look at the drafting lawyer’s notes to see whether or not they contain any information that might buttress their attempt to set aside the Will.

Justice Myers quite properly deferred answering that question for a more fulsome hearing and cited the important decisions in Neuberger as well as the Johnson v. Johnson decision of the Ontario Court of Appeal in 2022. Justice Myers reminded all, that there needs to be at least a minimal evidentiary threshold of some evidence that would call into question the validity of a Will, that is not successfully answered by the responding party. In other words, you cannot simply take a wild shot and ask for discovery of information without at least a basis for pointing out suspicious circumstances and facts in support thereof.

But that was not the interesting portion of this decision. In the White case, you have a woman who upon approaching her deathbed wanted to do a new Will. She had spoken to a lawyer that she had chosen herself and made arrangements for a new Will to be prepared. The lawyer duly drafted a Will based upon the new instructions, and the woman’s son attempted to arrange the final appointment between mother and lawyer.  The lawyer arrived at the hospital and indicated that the visit was to review the draft Will and for it to be signed. When the lawyer arrived, the woman stated that she was not feeling up to discussing it and asked the lawyer to return another day. Five days later, the woman died without ever meeting the lawyer again or finalizing the new Will.

The interesting side point was whether or not the draft Will was enough, and that it might indeed be fixed by section 21.1 of The Succession Law Reform Act. Justice Myers poured water on that idea. To paraphrase the Judge, “I am dubious that section 21.1 could apply on these facts. The lawyer’s e-mail stating that she wanted to have a telephone conversation with the woman does not sound like a Will that was ready for signing. A draft Will is just a draft. It is common to see changes made as late as during the signing ceremony. Case law from Western Canada, where the horseshoe rule has existed for some time, discusses the need for a court ordered Will to record a deliberate or fixed and final expression of intention as to the disposal of the deceased property on death. It is hard to see how a draft Will can meet that threshold.”  In simpler language, Justice Myers is saying a draft Will is simply that a draft, and that until at least finally approved, you do not have a final expression. In the end, Justice Myers did not make a final decision on this on this point and deferred it to a fuller hearing on the point.

Dale Streiman Law LLP can raise another alternate fact situation. In our office, it is common before the client attends at the office to sign their Will, we will have a telephone or zoom meeting with the client and review the documents in detail. The clients will suggest any changes that they wish and then finally approve the draft. The only difference between the draft being reviewed by the client and the final version signed are dates in the vast majority of times. It is extremely rare for a further change to be made at the time of signing. Would this satisfy Justice Myers and the existing law as to whether or not a draft is indeed a reflection of the Will maker’s final expression of what they wanted in their Will. Great fodder for lawyers making money, not so certain that in reality all one is doing is giving clients a possible out when they have unnecessarily dragged out a process that they should have long earlier attended to.

Tough love, but heck someone has to say it.