In Estate of Harold Franklin Campbell (Re), released by Ontario’s Superior Court of Justice in July, a man executed a will in 1996 following the death of his first wife. He named his son and daughter as equal beneficiaries as well as executor and alternate executor, respectively.
He remarried in 2000, thereby revoking the will under a provision then in the province’s Succession Law Reform Act (SLRA). The Ontario government repealed that provision in 2021 as part of broader estate reforms. Marriages occurring after Jan. 1, 2022, no longer revoke a will in the province, although marriages before that date still do.
Believing his 1996 will was still valid, the man signed and stapled two handwritten notes to the document. The first note, dated Nov. 16, 2016, set out items he wanted to give to his second wife; the second note, dated June 9, 2017, set out wishes for his funeral. Both notes met the requirements for valid “holograph” codicils to the will under the SLRA.
The man died on June 11, 2020. Following the man’s death, his son asked the court to find that the handwritten notes had revived the will.
The son argued the court should rely on a curative provision in the SLRA, added in 2021 as part of Ontario’s estate law changes, that allows the court to validate an otherwise invalid will if the court believes the document sets out the deceased’s testamentary intention or their intention “to revoke, alter or revive a will.”
The court found the holograph notes validated the 1996 will, but not by way of the new provision. Instead, the court relied on another provision in the SLRA that allows a testator to revive a will by using a valid codicil, provided it shows the testator’s intention to do so.
The Nov. 16, 2016, holograph note shows the man thought the will was “both valid and subsisting and he purported to vary it by making that holograph,” the ruling stated. The revival provision in the SLRA was sufficient for the court to reach its decision.
In addition, the son requested to apply the new curative provision “in an impermissible way,” the judge said. That provision gives the court jurisdiction to deem valid a will that fails to strictly comply with the technical requirements of making a will, but nonetheless sets out a deceased’s intentions, the judge said.
However, the curative provision doesn’t “provide the court with license to read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence.”
The decision raises possible limitations of the new curative provision in the SLRA, said Rebecca Studin, an estate lawyer with de Vries Litigation LLP in Toronto.
“It’s early days and the jurisprudence is [still] developing,” she said. “Maybe this is the judge saying that we can’t take [the new provision] that far.”
If arguing a case with similar facts, Studin said she would probably rely on both the curative provision and the revival provision “and see where the judge’s reasoning lands. You would want to plead it broadly as opposed to narrowly.”
The Campbell decision also reinforces the importance of reviewing a will periodically, especially as life circumstances change.
While marriage no longer invalidates a will in Ontario for marriages occurring after Jan. 1, 2022, they still are “a major life event that should encourage testators, or people in general, to reconsider their estate plans to make sure they’re current and reflective of what they want,” Studin said.