The Year in Review from your Public Affairs Liaisons

Your Public Affairs Liaisons, Krystyne Rusek and Angelique Moss, have been hard at work bringing issues of legislative change and public affairs affecting the estates bar to the attention of our Executive and to our members.  Further to the update included in the March edition of the Section Insider, we provide a further summary of issues for your reading pleasure.

Caselaw on Validation of Wills

As of January 1^st, 2022, s. 21.1 of the Succession Law Reform Act has been available to validate Wills that are not in compliance with the formal requirements set out therein.

In February 2023, the decision in Grattan v. Grattan (unreported) sent ripples through the estates bar when a draft electronic Will, which had never been finalized or signed by the deceased, was validated.  The judge found that the evidence supported that the draft Will had been prepared on the instructions of the deceased, had been reviewed by her, with requested changes made using software on her computer, and then emailed to the drafting solicitor.  The judge found that the draft Will set out the “fixed and final intentions of Ms. Grattan, prior to her passing”.  A number of concerns have been raised with this decision, including that:

• the alleged Will was not signed by the testator and was in draft form as of her death
• there appeared to be no evidence that it was the deceased who had made the changes
• 15 days had elapsed between the date the electronic document was emailed to the solicitor and the date of death, thus raising the possibility that the deceased may have changed her mind about the contents of the Will
• electronic documents are specifically exempt from the application of s. 21.1, pursuant to the operation of s. 3 of the SLRA in conjunction with section 31 of the Electronic Commerce Act, 2000

In early June, the decision of the Honourable Justice Myers was released in Cruz v Public Guardian and Trustee, 2023 ONSC 3629 (CanLII).  Justice Myers found that the evidence supported a finding that the alleged Will was signed by the testator and that the document recorded a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”.  The requested Order was granted, with a comment that this type of mistake was exactly what s. 21.1 of the SLRA was intended to address.

Changes to Probate Forms and Procedures

As all of you know, the forms used for probate applications have been significantly amended over the past year and a half.  A summary of the changes that took effect in 2022 was provided in the March 2023 Section Insider.  Resources and a summary of the legislative changes since January 2022 can be found here.

Further minor changes came into effect on January 30^th of this year, including the addition of a lawyer’s certificate of service (for probate, form 74B.1), to prove that a document was either served by a lawyer or caused to be served by a lawyer.  This eliminates the need to swear an affidavit of service in the presence of a commissioner of oaths.  There were also amendments to various forms used in a passing of accounts.

Practitioners can sign up at csdmanual@ontario.ca to receive automatic updates of the Estates Procedures Manual, published by the Court Services Division, which provides comprehensive guidance on the preparation of various forms and applications related to probate.