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Creating a Will is one of the most critical steps to take when preparing for what happens to your estate. Preparing a valid Will is the best way to ensure that your assets will be distributed amongst your family, loved ones, friends, or charities as you see fit. Without a Will, if you die, your estate will be distributed according to the Succession Law Reform Act, which may not reflect your actual intentions.

The recent decision of Re: Pearce Estate from the Ontario Superior Court of Justice shows that it’s essential to be very precise when creating or replacing a Will. A failure to do so can leave a lot of ambiguity in place, making it difficult for the courts to decipher the testator’s intentions.

Applicant’s status as trustee uncertain under Will

The applicant believed he had the right to be the executor of the deceased’s estate, valued at approximately $1.8 million. He submitted a document to the Court titled “Outline of the Will of [the Deceased]”. He sought to have it probated as her last Will and testament.

The purported Will was not written in a legal style. Rather than having entire paragraphs, it was written in point form. However, it did contain some of the essential elements of a Will, particularly as it was signed by the deceased and two witnesses. One of the witnesses signed affidavits stating they saw it signed and did serve as a witness.

The Will named the applicant as “trustee”. However, as the deceased had also established a trust, it was unclear whether the applicant was meant to be trustee of the trust or the estate. The estate’s solicitor told the court that he believed the deceased had intended to name the applicant as the estate’s trustee (or the executor). The solicitor noted that the deceased was unfamiliar with legal language and may not have been familiar with the role of trustees in various capacities or that there could be two trustees associated with the estate.

Legal requirements when updating or replacing an existing Will

The requirements for a valid Will in Ontario are set out under the Succession Law Reform Act. The Act states a Will must be in writing and signed by the testator (or someone in their presence and at their direction). Additionally, two witnesses must sign stating that the testator signed the Will. There are some limited exceptions to these rules, such as holographic Wills.

If a testator is updating or replacing their existing Will, there are strict requirements under the Succession Law Reform Act to be followed. One of these is that the Will must contain language declaring an intent to revoke previous Wills.

In Re: Pearce Estate, the deceased did not include any language stating that her previous Will was to be revoked. Neither the witness who signed the new Will nor the solicitor for the estate was able to offer any evidence of the deceased’s intentions. While the solicitor told the Court he believed the deceased intended the applicant to be named executor of the estate, he could not share any information on what led to this belief.

Document determined to be an outline, not a Will

The Court determined that, on the face of things, the document seemed to be an outline for preparing a new Will. The Court recognized that the deceased might not have had time to consult her lawyer or have a formal Will drawn up. Perhaps she had intended to convert the outline into a Will, which could be why she signed the document. However, the Court noted these scenarios were hypothetical as none of the witnesses could offer any evidence of the deceased’s intentions.

Additionally, the document contained no language stating that the outline is intended to form a Will. The Court stated:

“Nor is there any evidence of the content of those wills and how they might differ from the outline.  There is ambiguity as to whether the preparation of a new will and the revocation of the previous will was a future intention or whether the testator intended this document to carry those intentions into effect.”

The Court stated that the estate’s value requires additional evidence for an outline to be accepted as a Will intended to replace existing Wills. Rather than dismissing the matter altogether, the Court adjourned the hearing. The parties were requested to return with additional witnesses and any previous Wills, so the Court could examine them and compare them to the outline.

Contact Derfel Estate Law in Toronto for Skilled Representation in Will Disputes

Derfel Estate Law is a boutique estate litigation law firm located in Toronto and serving clients throughout Ontario. Our experienced and professional estate litigation lawyers focus on all aspects of estate disputes, including Will challenges and issues involving executors and trustees. We represent all parties involved in estate litigation matters, including beneficiaries, guardians, executors, and trustees. To schedule a confidential consultation, contact us online or call 416-847-3580.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estate Law

Contact Derfel Estate Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.


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Toronto, Ontario,
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