We are but halfway through 2023 and already there has been a flurry of activity in estates and trusts jurisprudence. Helpfully, these decisions run the gamut in terms of substantive issues in the practice area – from considerations of the relatively-new substantial compliance provisions under the Succession Law Reform Act to inter vivos gifts, and from contested guardianship matters to rectification. This article explores but a cross-section of the rich body of case law that has emerged in the past six months.
Grattan v Grattan (unreported)
The COVID-19 pandemic was the catalyst for a swath of amendments to estates and trusts practices in Ontario. One such update was the introduction of substantial compliance legislation in the form of section 21.1 of Ontario’s Succession Law Reform Act, which came into effect on January 1, 2022. Prior to the implementation of section 21.1, Ontario was one of three remaining Canadian jurisdictions favouring a strict compliance regime.
As with other substantial compliance legislation, section 21.1 of the Succession Law Reform Act allows the court to issue an order or declaration that a particular instrument is a valid Will even if the formalities of due execution have not been met, provided the court is “satisfied” that the “document or writing […] sets out the testamentary intentions” of the testator.
Grattan v Grattan, an as-of-yet unreported decision of the Superior Court of Justice from February 2023, is one of the inaugural cases interpreting section 21.1 of the SLRA. In Grattan, the testator had met with a lawyer for the purposes of conveying instructions with respect to the preparation of a Will. The testator reviewed the Will and, subject to certain minor changes, arranged a meeting with the lawyer to have it signed. She died prior to that subsequent meeting.
The draft Will named the testator’s brother as sole estate trustee and sole residuary beneficiary, and he brought an application pursuant to section 21.1 of the SLRA for a declaration that the draft Will was the testator’s valid Last Will and Testament. The application was unopposed.
Ultimately, the court was satisfied that the draft Will set out the testamentary intentions of the testator. The Applicant adduced relevant evidence from the drafting solicitor including an affidavit detailing the circumstances surrounding their meetings with the testator. Although the Will was not signed, the court held that the delay in execution was purely administrative and not indicative of a change in the testator’s intentions.
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