Recent Last Will Cases in Ontario

There is a great deal of confusion about how to make wills. Clients are confused. They visit American estate planning websites where different estate and tax laws and are used.

In some jurisdictions, digital wills are allowed. Here’s an example of what can go wrong in Ontario. Ryan was in a jurisdiction where electronic wills are permitted. Ryan had a telephone argument with his daughter, Kim. He decided to disinherit Kim at the end of their call. He said “Alexa, change my last will and delete any reference to Kim. Sign it electronically with my digital signature and store it in my digital vault.”

Ryan died later that month. In what jurisdiction is Ryan’s digital will considered valid? I can tell you for sure is that it is not currently in Ontario. In Ontario, you still need a written will with a wet signature and two witnesses to be valid. Wills can now be signed in Ontario using audiovisual technology. But one of the two witnesses must be a member in good standing with the Ontario Law Society. That means one of the will witnesses signing with audio-visual technology is either a licensed lawyer or licensed paralegal.

Here is a story to consider how Ontario law has changed.

Henry signs his will and puts it into a sealed envelope with a note to his executor. Henry’s note tells his executor to have the will witnessed. But by the time the envelope was opened, Henry has died.

It was too late to have his signature witnessed. Because Henry’s will was not witnessed, it did not comply with all legal formalities. Government intestate rules decide how Henry’s estate is distributed to his next of kin. This is regardless of what Henry may have wanted.

But what if Henry died after January 1, 2022? Section 21.1 of the Succession Law Reform Act is new Ontario law. It saves the day. It states if a Superior Court judge:

… is satisfied that a document sets out a person’s testamentary intentions, the court may validate the document as if it had been properly made.

Henry’s will in the sealed envelope expressed Henry’s intentions to deal with his property on death. Henry signed his will and did not want to die intestate or without a will. In a case like Henry’s called Cruz v PGT case at 2023 ONSC 3629, the court declared the signed will in the sealed envelope valid. It was effective as if it had been properly executed. Henry’s wishes would, therefore, be followed.

Intestate – Dying Without a Will

If Henry’s last will was not valid, government intestate rules decide how to divide his estate. The government does not give Henry ordinary tax breaks or charitable tax credits. Henry does not get to choose who inherits or control his estate unless he makes a valid will.

Welcome to the new Ontario world of wills. Judges can validate documents that set out a person’s testamentary intention as wills. Don’t ask how much that court appearance costs. A person’s final wishes will not be frustrated for purely technical reasons.

Do you have questions about last wills? Call for a meeting. I look forward to hearing from you.

Estate law is all I do.

Ed Olkovich