July 19, 2022

Sections 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, c S.26 (“SLRA“) set out requirements for a valid Will in Ontario. The document must be in writing, signed by the testator, in the presence of two subscribing witnesses who watched the testator sign the document. But can the mere outline of a Will be valid if it meets these requirements? The Ontario Superior Court of Justice recently considered this very issue.

In Re Pearce Estate, 2022 ONSC 4028 (CanLII), the Court considered an Application for a Certificate of Appointment of Estate Trustee with a Will in respect of a document entitled “Outline of Will of Diane Frances Pearce”. The document was in point form, but was signed by the testator and two witnesses. One of the witnesses even swore an affidavit of execution attesting to having been present with the deceased and the other witness and saw the deceased sign in their presence.

The document itself contained three lump sum gifts and the outline of a testamentary trust. The applicant, Allan Pearce, was named the “Trustee” in the document without further detail. The Applicant also relied upon the affidavit of the estate’s solicitor, who attested that he believed the deceased intended to name the applicant as her executor but was not familiar with the terminology, and the trust is the entire residue of the estate, which was to be divided three ways and paid out over time.

Provided the criteria in sections 3 and 4 of the SLRA are met, the Court confirmed there was no particular format required to make a valid Will, provided the testator’s intention to make a valid Will can be discerned from the document. As such, the document at issue could technically meet those requirements.

However, the issue here was ambiguity. In particular, the witness’ affidavit did not describe the circumstances or what knowledge the witness had concerning the intentions of the deceased. Similarly, the solicitor witness did not state the basis for his information and belief that the testator wished to appoint the applicant as her executor. Moreover, there was no explanation as to why the outline was signed and what information there was to show that the deceased intended the outline to serve as her Will. This was significant because the outline referred to the deceased’s prior Will, but did not contain a revocation clause.

The Court therefore adjourned the matter to receive additional evidence demonstrating that the outline was intended to be a Will and was intended to revoke the earlier Will signed by the deceased. Helpfully, the Court provided a list of information it required to properly consider the issue:

  1.  Is the other subscribing witness still available and is he prepared to swear an affidavit?
  2.  What were the circumstances surrounding the preparation of the outline and the decision to sign it in front of witnesses?  Is there any additional evidence that this point form document was intended to be given effect as a new will?
  3.  Are the previous testamentary instruments named in the outline still available and how do they differ from the new outline will?
  4. Are all of the beneficiaries content that the document be treated as the last will of the deceased and to take the gifts provided in the outline?
  5.  Are there other beneficiaries who would be entitled to a share of the estate on an intestacy or were named in the previous will (s) so that they should be entitled to notice?


The Upshot:

An outline of a Will may very well be a valid Will, but to prove such a document in solemn form, the Court will require more robust evidence than simply an affidavit of subscribing witness, namely, evidence regarding the testator’s intention to treat the document as a Will, the circumstances surrounding its execution, and if the testator had a prior Will, whether the testator intended the document to revoke the prior Will.