March 11, 2015

Antonina’s father died during his vacation to Italy. She and her two siblings then received a purported handwritten will made just before his death which named their cousin Anna as a beneficiary. In Re Estate of Domenico Grillo, 2015 ONSC 1352, Justice Newbould found Ontario had jurisdiction over Antonina’s application to set aside this holograph will. His Honour did so and declared her father’s previous will to be valid.

Despite being ill, the father had decided to travel to Italy. Before his death, Antonina and her two siblings had received several “very suspicious” calls from Anna. The siblings went to Italy to check on their father and discovered his house had been looted and over 13,000 euros had been withdrawn from his bank account. After the funeral they received a purported handwritten will of their father which added Anna as an equal beneficiary to them. This will did not appear to contain the father’s handwriting or his signature and indicated the wrong date of his birth. An Italian handwriting expert concluded that the holograph will was not made in the father’s handwriting. Anna and members of her family were criminally charged in Italy for theft and for registering a forged will.

Antonina applied to set aside the holograph will, as the bank required a declaration of the validity of the father’s previous will in order for it to act under same. Justice Newbould considered whether Ontario had jurisdiction to hear the application. His Honour applied the test set out in Club Resorts Ltd. v Van Breda, 2012 SCC 17 (CanLII), where the Supreme Court held that a case with an international aspect must have a real and substantial connection to the jurisdiction in question such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum. There are presumptive connecting factors, the starting point for which is rule 17.02 of the Rules of Civil Procedure. Clause 17.02(b) permits service without a court order in respect of the administration of a deceased’s estate in respect of personal property where the deceased was a resident of Ontario at the time of death. Clause 17.02(c) allows such service with respect to setting aside a will in respect of personal property in Ontario. Here, the father was resident in Ontario (even though he died in Italy) and some of his assets were located in Ontario.

Justice Newbould held that Anna could expect that the determination of the validity of the handwritten will would take place in Ontario as that was where the father’s children lived, where the father was domiciled, and where some of the father’s bank accounts were located. These factors, together with clauses 17.02(b) and (c) are presumptive connecting factors giving Ontario jurisdiction to deal with the handwritten will.

Under subsection 36(2) of the Ontario Succession Law Reform Act, the formalities and validity of both wills were governed by the law of the domicile of a deceased, here Ontario. Justice Newbould found that the evidence demonstrated that the handwritten will was not written by the father and declared it to be invalid.

This case appears to be the first that applies the Supreme Court’s decision in Van Breda to proceedings involving the determination of the validity of a will. It appears that none of the express presumptive connecting factors set out by the Supreme Court were met in this case. However, the Supreme Court acknowledged that the list of presumptive connecting factors set out in Van Breda related to claims in tort and did not purport to be an inventory of connecting factors covering the conditions for the assumption of jurisdiction over all claims known to law. As such, examining clauses 17.02(b) and (c) should be the starting point when considering whether to bring a proceeding in Ontario with respect to a will made in a foreign jurisdiction.