Court File and Parties

COURT FILE NO.: CV-23-00698301-00ES DATE: 20230629 ONTARIO SUPERIOR COURT OF JUSTICE

RE: ROMAN VOJSKA, in his capacity as executor of the estate of Vida Vojska Applicant

-and-

IRENE OSTROWSKI Respondent

BEFORE: FL Myers J

COUNSEL: Matthew Furrow and Terri Stein, for the applicant

HEARD: June 29, 2023

Endorsement

[1] Roman Vojska is the estate trustee of the estate of his mother Vida Vijska.

[2] Irene Ostrowski is Roman Vojska’s sister.

[3] Their mother died on September 9, 2022.

[4] The parties are the sole beneficiaries of their mother’s estate.

[5] On October 7, 2011, the parties’ parents went to a lawyer to sign new wills and powers of attorney. Each parent signed a will and two powers of attorney. The lawyer and his law clerk witnessed the signing ceremony.

[6] With six documents passing back and forth for four signatures on each document, one signature on one document was missed. The lawyer did not sign the mother’s will. Everyone else signed. The lawyer signed all the powers of attorney and the father’s will. Everyone intended and thought that all the documents were properly signed and witnessed. But through human error and oversight, one witness signature is missing on one will.

[7] No affidavits of execution were prepared. Both parents’ wills were however stored in the lawyer’s vault. That is some corroboration of the treatment of the mother’s will as if it were valid.

[8] The lawyer also billed the clients for services including signing the wills (plural).

[9] Without the attestation of two witnesses, the mother’s will is invalid under s. 4 (2) (b) of the Succession Law Reform Act, RSO 1990, c S.26.

[10] The applicant asks the court to validate the will using the new power set out in s. 21.1 of the statute:

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made. [Emphasis added]

[11] This section applies where the deceased person died on or after January 1, 2022 as is the case here. It allows the court to treat documents as a will despite the fact that they were not properly executed. It grants the court a discretion to treat as a valid will a document that expresses the testamentary intention of the deceased but was not properly executed as required for a will.

[12] It is hard to imagine a more textbook example of a case for which the new power was intended.

[13] Here the will was drafted by a lawyer as a will. There is no doubting that its purpose and effect was to express the testamentary intention of the deceased person.

[14] There is no question that the will is otherwise authentic. It was kept by the lawyer. There is no hint that it was ever revoked or changed.

[15] The will replaced an older will that similarly gifted Ms. Vojska’s property to her children. The new will in 2011 increased the size of the gift to the applicant son. It is significant therefore that the respondent sister does not oppose this application. She accepts that the newer will expresses her mother’s intention despite some financial prejudice to herself.

[16] In Cruz v Public Guardian and Trustee, 2023 ONSC 3629, I was presented with a signed but unwitnessed will that had been kept in a sealed envelope. Also in the envelope was a note from the deceased asking that the estate trustee get the will witnessed.

[17] In Cruz, I noted that it was clear that the will was intended to be a will, “The deceased just blew the formalities”. The formalities are not trivial however. In Cruz, the will was drafted partly in a pre-printed form and partly in the handwriting of the deceased. It was dated and signed. It was drafted in the form of a will. The deceased understood that his signature needed to be witnessed but he apparently misunderstood what that meant. While it lacked in one formality, it had enough to let me conclude easily that the document expressed the testamentary intention of the deceased as required in s. 21.1 of the SLRA. The document was executed; it was just not “properly executed”.

[18] Here, the deceased went to her lawyer’s office for a formal signing ceremony. The need to have two witnesses present and subscribe to having personally witnessed the deceased signing her will fulfills several purposes. It gives strong assurance that the document used later is the right document. It also gives a solemnity to the occasion to bring home to the deceased that she is doing something very significant. The law does not require formal signing ceremonies with two witnesses like this for many other things. You can sell your house without two witnesses (and maybe even without one in some cases).

[19] Here it was not the deceased who made the mistake about formalities but her lawyer. As far as the deceased knew, the will signed with all its formalities was her new will. She had two witnesses present and she thought they had signed to give the document formal validity.

[20] One can readily imagine the scene with six documents being tossed about a table back and forth to have four people sign each one. Then no one checked to ensure that it was all done properly. The fact that the lawyer did not bother with affidavits of execution shows the rather lax approach to the formalities that he took. This case demonstrates why the best practice is to sign each document, one at a time, with due care and attention, to then check, and to sign affidavits of execution right away. No doubt it will take a few minutes extra. But part of the goal of paying a professional is to produce valid outcomes and to avoid the common errors that lack of ordinary care produces.

[21] In Cruz, I mentioned a test that has developed in Western Canada whereby a court looks to ensure that the document propounded is authentic and then that it contains a "a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death". Estate of Young, 2015 BCSC 182, at para. 35.

[22] In White v White, 2023 ONSC 3740, I mused in obiter dictum about whether an unsigned draft will can ever be sufficiently fixed and final for the purposes of the section. Will the phrase “not properly executed” in s. 21.1 include “unexecuted” (i.e. unsigned) documents?

[23] But none of the potentially interesting questions about the degree of proof or the certainty and cogency of the deceased’s expression of her testamentary intention or how much do factual and legal circumstances and context matter, are raised in this case.

[24] The deceased did everything that her husband and every other person who has a lawyer-drafted valid will did. The will was not properly executed because the lawyer did not pay due care and attention to the execution formalities. There is no doubt of the authenticity of the will or that it “sets out the testamentary intentions of a deceased” as required in s. 21.1 of the SLRA.

[25] Therefore under s. 21.1 of the SLRA, I order that the will of Vida Vojska dated October 7, 2011 which was not properly executed is as valid and fully effective as the will of the deceased as if it had been properly executed or made.

FL Myers J Date: June 29, 2023