Court File and Parties
Court File No.: E-2021-10400 Date: 2021-02-25 Superior Court of Justice - Ontario
Re: IN THE ESTATE OF STELLA ROSE SWIDDLE, deceased
Before: The Honourable Mr. Justice P. Boucher
Heard: In Chambers
Endorsement
[1] Ronald Martin Swiddle filed with the Registrar documentation in support of his request for a Certificate of Appointment of Estate Trustee with a Will limited to assets referred to in the Primary Will with codicils of Stella Rose Swiddle. He is the executor named in the Primary Will with codicils that was filed in support of his application.
[2] The application was referred to me in chambers not only because it involves primary and secondary wills, but also because of the circumstances surrounding the execution of the third codicil on June 23, 2020.
[3] Briefly stated, the witnesses to the will were physically located in Greater Sudbury, Ontario, while Stella Rose Swiddle was at her daughter’s house in Mississauga, where she had spent the winter. The witnesses spoke on the telephone with Stella Rose Swiddle when she reviewed and signed the third codicil. It was sent to the witnesses via Purolator the next day, and they signed it on the last page. The document was executed in this fashion due to concerns arising from the pandemic.
[4] Stella Rose Swiddle’s daughters, Merry Tunney and Frances Swiddle, were physically present with her when she signed the third codicil. They signed it as well, in the witness sections, apparently to indicate their consent with respect to its contents.
[5] Neither the Succession Law Reform Act nor the applicable regulations permit the execution of a will or codicil in the fashion that took place in this case. Subsection 4(1) of the Act reads as follows:
4 (1) Subject to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
[6] At the outset of the pandemic it was difficult to safely conform with the requirements of subsection 4(1) of the Act. Accordingly, Ontario Regulation 129/20 was put in place on April 22, 2020 pursuant to the Emergency Management and Civil Protection Act.[^1] The relevant portions of the Regulation are as follows:
- In this Order,
“audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
- (1) A requirement under the Succession Law Reform Act that a testator or witnesses be present or in each other’s presence for the making or acknowledgment of a signature on a will or for the subscribing of a will may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment or subscribing.
(2) If a will is executed with the assistance of audio-visual communication technology as authorized by subsection (1), the signatures or subscriptions required by the Succession Law Reform Act may be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.
(3) For the purposes of subsection (2), copies of a will are identical even if there are minor, non-substantive differences in format or layout between the copies.
[7] Ontario is a jurisdiction that requires strict adherence to the formalities of execution of a will, as set out in the legislation.[^2]
[8] Given the execution of the third codicil did not take place in accordance with the Act and the Regulation, I am unable at this time and on this record to issue the requested Certificate of Appointment of Estate Trustee with a Will limited to assets referred to in the Primary Will with codicils.
The Honourable Mr. Justice P. Boucher Date: February 25, 2021
Footnotes
[^1]: On July 15, 2020 the Regulation was continued pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. [^2]: See Macdonell, Sheard and Hull on Probate Practice 5th ed.(Toronto: Carswell, 2016), at page 110, Sills v. Daley, 2003 ONSC 72335, 64 O.R. (3d) 19 (SC) at para 15 and Papageorgiou v. Walstaff Estate, 2008 ONSC 32305 at para 30.