Court File and Parties

Court File No.: 23-0323-0000 Date: 2023-07-24

Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y7

Re: Estate of Harold Franklin Campbell

Before: C. Chang J.

Counsel: R. Micheli, for the Applicant, Christopher Harold Campbell Christopher Harold Campbell (qua Beneficiary), Self-represented Lisa Ann Campbell, Self-represented Carol Campbell, Self-represented

Heard: July 21, 2023 (via hybrid hearing)

Endorsement

Introduction

[1] For the sake of efficiency and clarity, when referring to the individuals involved in this application, I will use their first given names only, being “Harold”, “Christopher”, “Lisa” and “Carol”. In doing so, I intend no disrespect and it is my sincere hope that no one feels disrespected in any way or takes exception to being referred to by his or her given name only.

[2] The applicant, Christopher, brings this application for:

a. a small estate certificate (with a will and codicils); and

b. directions respecting the validity of the deceased’s will.

[3] Christopher is also a named beneficiary under the subject will, as is Lisa. Carol is the named beneficiary of specific bequests set out in a hand-written document dated November 16, 2016 that is signed by Harold.

[4] This matter originally came before me as an application in writing. I adjourned the application to be heard orally on notice to anyone who may be entitled to share in the estate, so that they could put their positions before the court. That oral hearing returned before Kumaranayake J. on July 6, 2023, at which attendance the applicant sought an adjournment of the hearing so that originals of the will and two hand-written documents could be made available for the court’s review and consideration. The oral hearing of the application proceeded before me on July 21, 2023.

Facts

[5] The facts relevant to this application are undisputed and can be summarized as follows:

a. Harold was born on March 17, 1941;

b. Christopher and Lisa are the children of Harold’s first marriage;

c. following the death of his first wife, Harold executed his last will and testament on March 15, 1996 (the “Will”);

d. the Will names Christopher and Lisa as estate trustee and alternate estate trustee, respectively, and as equal beneficiaries of the residue of Harold’s estate;

e. Harold married Carol on October 28, 2000 and, by operation of s. 16 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, as it read on that date, the Will was revoked by that marriage;

f. Harold made two handwritten notes dated November 16, 2016 and June 9, 2017, both of which he signed and stapled to the inside cover of the Will;

g. the November 16, 2016 note sets out specific items that Harold requested be given to Carol and the June 9, 2017 note sets out his wishes respecting the handling of his remains; and

h. the two handwritten notes (the “Holographs”) are valid holograph codicils under s. 6 of the Succession Law Reform Act [i].

Issue

[6] The sole issue for determination on this application is whether the Will was revived.

Analysis

Parties’ Positions

[7] Lisa and Carol take no position on this application beyond confirming as undisputed the facts set out above.

[8] Christopher submits that the court should, under s. 21.1(1) of the Succession Law Reform Act, order that the Holographs are valid revivals of the Will. Specifically, Christopher proposes the following four-step process:

a. a finding be made that Harold intended to rely upon the Will;

b. an order be made under s. 21.1(1) of the Succession Law Reform Act that the Holographs are valid and fully effective as revivals of the Will;

c. a finding that the Holographs therefore meet the technical requirements of the Succession Law Reform Act; and

d. if the Holographs still do not meet the technical requirements of the Succession Law Reform Act as renewals of the expired Will, a further order be made under s. 21.1(1) that they do meet those requirements.

Law

[9] Section 19(1)(b) of the Succession Law Reform Act, as it read on both November 16, 2016 and June 9, 2017 and as it currently reads, states,

19. (1) A will or part of a will that has been in any manner revoked is revived only,

(b) by a codicil that has been made in accordance with the provisions of this Part,

that shows an intention to give effect to the will or part that was revoked.

[10] Section 21.1(1) of the Succession Law Reform Act states,

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.

Decision

[11] I find that the Will was revived by the making of the November 16, 2016 Holograph and is therefore valid and subsisting. However, I arrive at this conclusion in a different way than that proposed by Christopher.

[12] Section 19(1)(b) of the Succession Law Reform Act, as it read on November 16, 2016, is clear that a revoked will or part of it is revived by a codicil that shows the deceased person’s intention to give effect to that revoked will or part.

[13] Based on my reading of it, the November 16, 2016 Holograph evinces that, as at that date, Harold thought the Will to be both valid and subsisting and he purported to vary it by making that Holograph, which sets out specific bequests to Carol. In other words, by the making of that codicil, he gave effect to the Will. Therefore, in my view, pursuant to the plain wording of s. 19(1)(b) of the Succession Law Reform Act, as it read on November 16, 2016, the Will was revived upon Harold’s execution of the November 16, 2016 Holograph.

[14] In my view, I need not undertake the proposed four-step process proposed by Christopher and I decline to do so for the following reasons.

[15] Christopher’s suggested order, pursuant to s. 21.1(1) of the Succession Law Reform Act, that the Holographs are valid revivals of the Will is unnecessary. As outlined above, the Holographs are codicils to the Will and those codicils show that Harold intended to give effect to the Will when he made the Holographs. Nothing more is required for the operation of s. 19(1)(b) to revive the revoked Will.

[16] Furthermore, I am unaware of any authority that s. 21.1.(2) can be interpreted in the manner proposed by Christopher – i.e., to read into a document or writing an intention to revoke, alter or revive a will. Counsel was unable to direct me to any such authority and my own research has disclosed none. In my view, that proposed approach is an attempt to use s. 21.1(1) of the Succession Law Reform Act in an impermissible way.

[17] The law is well settled that, when interpreting statutory law, the words of the section in issue must be read “in their entire context and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament” (see: Desjardins General Insurance Group v Campbell, 2022 ONCA 128, at para. 24). Reading the words of s. 21.1(1) of the Succession Law Reform Act in this way, I find that it confers upon the court jurisdiction to deem as valid documents or writings that fail to strictly comply with the applicable requirements of that Act, but that nonetheless set out a deceased person’s testamentary intentions or intention to revoke, alter or revive her/his will. Section 21.1(1) does not, as Christopher suggests, 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.

[18] Of paramount importance in interpreting testamentary instruments or documents is the principle that the intention of the testator must be given effect (see: Barsoski Estate v Wesley, 2022 ONCA 399, at para. 21). That intention is to be determined based on the contents of those instruments or documents, as well as admissible extrinsic evidence under the so-called “armchair rule” (see: Ross v Canada Trust Company, 2021 ONCA 161, at paras. 36-41). In other words, a testator’s intention cannot be created out of whole cloth, which is what Christopher effectively suggests using s. 21.1(1) of the Succession Law Reform Act.

[19] I would, in any event, decline to make such an order on the facts of this case.

[20] Christopher submits that Harold revived the Will by making the Holographs because, when he made them, he believed the Will to still be in effect and therefore he, in making the Holographs, intended to revive the revoked Will, which intention should be read into the Holographs using s. 21.1(1) of the Succession Law Reform Act. I do not accept this argument.

[21] Beyond the fact that the argument is circular reasoning and misconstrues s. 21.1(1), nothing in the Holographs refers to revocation or renewal of the Will or to anything from which such references could reasonably be inferred. There is also no extrinsic evidence that Harold was aware that the Will had been revoked and no evidence from which such knowledge could reasonably be inferred.

[22] Therefore, to make Christopher’s requested order under s. 21.1(1) of the Succession Law Reform Act, I would be required to conjure out of thin air Harold’s intention to renew the revoked Will. I am neither permitted nor prepared to do so.

Disposition

[23] As outlined above, I have found that the Will was revived pursuant to s. 19(1)(b) of the Succession Law Reform Act, as it read on both November 16, 2016, when Harold made the Holograph of that date and, as such, the Will is valid and subsisting. Therefore, Christopher’s application for a small estate certificate (with a will and codicils) is granted.

[24] Order to go accordingly.

C. Chang J. Date: July 24, 2023

[i] The Court of Appeal for Ontario expressly left open the issue of whether a handwritten document that complies with s. 6 of the Succession Law Reform Act could be construed to be a valid codicil (see: McGrath v Joy, 2023 ONCA 46, at para. 17). However, as it is undisputed that the November 16, 2016 and June 9, 2017 notes are valid holograph codicils, I need not determine this.