Wills Challenges

Learning from recent cases

Court cases involving the interpretation of wills are coming fast and furious in the wake of legislative developments across the country. While the rules governing this area of the law vary by province, these decisions contain lessons for estate planners in all jurisdictions. Insurance and financial advisors can provide significant benefits to clients by keeping them up to date on legislative changes and making sure they get the legal advice necessary to ensure their wishes are properly documented.

The Ontario Succession Law Reform Act (SLRA) contains comprehensive rules regarding the proper execution of wills. This includes the general requirement that a will be signed in the presence of two individuals (either in person or virtually), who will then sign as witnesses. However, changes to the SLRA in 2022 included a provision stating a will that is not properly executed will still be valid if the Court is satisfied it represents the individual’s testamentary intentions. Two recent Ontario Superior Court decisions came to opposite conclusions on whether documents met this test.

In Cruz v. Public Guardian and Trustee (2023 ONSC 3629), the deceased had written and signed a document purporting to be his will. He then provided a copy of the document to his executor and asked him to have it witnessed. As a result, the will was not validly witnessed pursuant to the SLRA rules. However, based on the executor’s testimony concerning the authenticity of the document and its reflection of Mr. Cruz’s intentions, the Court was satisfied it clearly represented the deceased’s testamentary wishes. The document was therefore admitted to probate. It is unlikely the same decision would have been made prior to the 2022 amendments.

The Court came to a different conclusion in White v. White (2023 ONSC 3740). In this case, the applicant testified his mother was in the process of drafting a new will at the time of her death in 2022. He submitted that a draft prepared by her lawyer prior to her death should, pursuant to the above-described new provisions of the SLRA, be accepted as her last will. If the Court had agreed, the deceased’s pre-existing 2014 will would have been revoked. In the Court’s view, however, the document in question was merely a draft will, was potentially subject to future revisions, and did not necessarily represent the deceased’s final intentions.

The above cases provide some guidance as to how the Ontario Superior Court will deal with recent legislative changes, but in no way represent the last word. There will be many more cases to come, with decisions that will be very fact-dependent.

In British Columbia, the 2009 Wills, Estates and Succession Act (WESA) continues to generate interesting and often controversial decisions. WESA is unique to B.C., but may represent a growing trend toward giving judges greater powers to revise validly executed wills they feel are inequitable.

The recent decision in Tom v. Tang (2023 BCCA 221) clearly demonstrates this trend. In this case, the deceased left 85% of her estate to two children (the appellants) and 5% each to her other three children (the respondents). The appellants argued they had played a significantly larger role in caring for the deceased in the last three years of her life. The respondents agreed, but maintained their 15% aggregate share was disproportionately low. The Courts ultimately sided with the respondents, with the Court of Appeal increasing their share to 30% of the deceased’s estate. The decision was based in part on the lower court’s finding that all five children were “dutiful, devoted and loving” and had all contributed significantly to the family’s well-being over the years. They therefore had a moral claim to a greater share of the estate. Some might question why a judge, who does not know the family except through a legal proceeding, and cannot have known the deceased, should be able to substitute his or her moral judgment for that of the deceased. But this is clearly allowed by the legislation.

Key Takeaways

What lessons can insurance and financial advisors take from these cases? Here are some recommendations.

If your clients have a will, get a copy and review it. If they do not have one, or if their current will is out of date, strongly encourage them to have one prepared. Make a referral to a lawyer if need be. This has of course always been the recommended approach, regardless of current legislation and case law.

The Ontario cases above are part of a national trend toward allowing documents to be treated as valid wills even when they do not meet the formalities of provincial legislation. This should not be taken as encouragement to do wills less formally! A properly executed will prepared by a qualified lawyer is the best way to ensure your clients’ objectives are met — although admittedly WESA and similar legislation might be an impediment.

Finally, you can greatly assist your clients by carefully documenting their estate objectives in your files. This should be a natural part of the insurance planning process in any case, and could be helpful if there is a subsequent will challenge that calls the client’s intentions into question.

GLENN STEPHENS is a retired vice-president of planning services for PPI Advisory and is now an independent consultant in the life insurance industry. He can be reached at gstephens520@gmail.com.

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BY MARK HALPERN