COURT FILE NO.: 2021-177

DATE: 2021/04/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher Kucman, Applicant

A N D:

The Estate of Rebecca Stephanie Lacroix, deceased

BEFORE: The Honourable Justice D.L. Edwards

COUNSEL: Margaret Opatovsky, for the Applicant

HEARD: April 20, 2021 (in writing)

ENDORSEMENT

[1] The Applicant, Christopher Kucman, seeks a Certificate of Appointment of Estate Trustee with a Will.

[2] On May 26, 2020 Rebecca Stephanie Lacroix (“Ms. Lacroix”), appears to have handwritten the following:

Tuesday May 26, 2020

I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.

RSLacroix

[3] Attached to that handwritten document is a Will in standard form created by her solicitor, Ms. Opatovsky, and initialed on each page apparently by Ms. Lacroix.

[4] The circumstances on how this came about is set out in Ms. Opatovsky’s affidavit of March 12, 2021. Basically, Ms. Opatovsky was contacted by telephone by a friend of Ms. Lacroix on May 19, 2020 and was advised that Ms. Lacroix was in the St. Catharines General Hospital with the final stages of cancer. On May 25, 2020, Ms. Opatovsky spoke with Ms. Lacroix on the phone, who instructed Ms. Opatovsky to prepare a Last Will and Testament, particularly to ensure that her youngest child was cared for, as she was dying and in the process of a divorce proceeding.

[5] Ms. Opatovsky contacted the hospital about the possibility of attending at the hospital with her assistant to have the Will executed. This request was refused because of COVID-19 restrictions. Therefore, Ms. Opatovsky instructed Ms. Lacroix to create a holographic Will and to incorporate by reference the hard copy of the draft Will that she had prepared. Ms. Opatovsky delivered the instructions and the draft Will to the hospital on May 26, 2020. On June 6, 2020, Ms. Opatovsky was advised that Ms. Lacroix had died that evening at her parent’s home.

[6] Ms. Opatovsky was provided with the holographic document and the draft Will which has been initialed. There is affidavit evidence that the handwritten document is in Ms. Lacroix’s handwriting and that her initials are on each page of the draft Will.

[7] The Estate Trustee now seeks a Certificate of Appointment.

THE LAW

Holograph Wills

[8] Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26 (“SLRA”), provides that “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.”

[9] Section 7(1) provides guidance with respect to the position of the testator’s signature, and indicates that “a will, whether holograph or not, is valid if the signature of the testator… is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.”

[10] In addition to the foregoing statutory requirements, the case-law provides that to be valid, the holograph will must be prepared with testamentary intent regarding the final disposal of the testator’s property upon death. In Bennett v. Toronto General Trusts Corp., 1958 CanLII 49 (SCC), [1958] S.C.R. 392, at p. 396, the Supreme Court of Canada stated the following:

There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature: Whyte et al. v. Pollok; Godman v. Godman; Theakston v. Marson.

[11] Where a will is in holograph form, an affidavit is required from someone well acquainted with the deceased confirming that the affiant frequently saw the deceased’s signature and handwriting, and believes that the whole of the document, including the signature, is in the handwriting of the deceased. Where the matter is not contentious, an affidavit from a member of the deceased’s immediate family or a bank official should normally suffice: see Ian M. Hull and Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016), at p. 307.

Incorporation by Reference

[12] The doctrine of incorporation by reference allows a document entirely separate and apart from a will to be consider part of a duly executed will. This doctrine is only applicable where there is a valid will into which the document may be incorporated. In Macdonell, Sheard and Hull on Probate Practice, 5th edition, authors Ian M. Hull and Suzana Popovic-Montag write, on p. 137, that the threshold requirements for a document to be incorporated into a will by reference are as follows:

a. The document must be in existence at the time the will is made;

b. The document to be incorporated must be described in the will as being in existence at the time of making the will; and

c. The document to be incorporated must be sufficiently described in the will so that it is clear that the document submitted for admission to probate is the same as the document referred to in the will.

[13] The onus of proving that these three requirements are met is on the propounder of the document for incorporation, on the civil standard of the balance of probabilities: see Thomas Estate v. Gay (1996), 14 E.T.R. (2d) 229 (Ont. Gen. Div.), at p. 6.

[14] In Re Dixon-Marsden Estate, 21 E.T.R. 216, 1985 CarswellOnt 711 (Surr. Ct.), the deceased made a document purporting to be a will on a single piece of paper. The main parts of it, including the appointment of the executor and the dispositive provisions, were typewritten. Subsequent to the typewritten portions, the deceased initialed each paragraph and wrote, in his own handwriting, the date in the top right hand corner. Then, at the bottom of the page, the testator wrote the following words: “The above-mentioned are in short those to whom my estate is left.” Immediately following this handwritten statement, the testator signed and printed his name.

[15] Counsel for the named executrix in the alleged will argued that the handwritten words constituted a holograph will and that the doctrine of incorporation by reference enabled the typewritten portion of the document to be included in the material admitted to probate.

[16] The court ruled as follows:

a. The document could not be viewed as two documents. See para. 14:

The probability is that Mr. Dixon-Marsden typed or caused to be typed the typewritten portions of the document, and then proceeded, as essentially one act, to initial the clauses, put in the date, write in the handwritten statement, and sign and print his name. Viewed in that light, there is simply no room for the doctrine of incorporation by reference. It is one document, not two, even though I would be the first to agree with Mr. Thompson that the doctrine of incorporation by reference does not require two separate sheets of paper.

b. Moreover, the court further indicated that the non-handwritten words could not be incorporated by reference since s. 6 of the SLRA requires a holograph will to be wholly in the testator’s handwriting. See para. 14:

… that Act declares, in effect, that a will is not valid unless signed by the testator in the presence of two witnesses who also sign, or unless made “wholly by his own handwriting and signature”. The one document here, tendered as a holograph will, is not “wholly” in the handwriting of the testator. I am aware of the proposition that one document partly written and partly typed may well qualify as a holograph will, but it is only the handwritten portions that qualify, and only if those handwritten portions fully contain the testamentary wishes of the testator in the sense that the typewritten portions are irrelevant to the dispositive nature of the document.

[17] In addition to the foregoing, the court made the following comments regarding the testator’s handwritten notes. The court was of the view that the words in question did not deal with something over which the testator had some control. See paras. 16 and 20:

…At the very least, one would think, as a matter of common sense, that a document, in order to qualify as a testamentary instrument, must have something in it relating in some way to events that are to happen after the death of the maker of the document. The words in question here have no such reference. Authority compels that requirement and more. In the first edition of Jarman on Wills, a will was defined as “an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life”. Later texts tend generally to eschew definition, but any that I have read at least lay down the requirement that the document not only evince an intention on the part of the maker that it is to be operative only at death but as well that it deals with something over which the testator has some control. [Emphasis added.]

So here, the words – “the above mentioned are in short those to whom my estate is left”, when viewed as a separate document from the typewritten portion, are both in form and in intention simply a declaration of what the deceased believed to be a fact. The case is no different from one in which the deceased writes a letter to a friend or a relative declaring that a certain piece of paper to be found in a certain drawer contains his will.

[18] In Facey v. Smith (1997), 17 E.T.R. (2d) 72 (Ont. Gen. Div.), in the context of a murder-suicide perpetrated by the deceased’s husband, the deceased and her husband each left three possible testamentary documents: (1) a formal Will (the “1981 Will”); (2) handwritten annotations to the 1981 Will which reference the codicil (the “Annotations”); and (3) a handwritten document titled “Codicil” naming no executors, but naming different beneficiaries from those in the Will (the “Codicil”). At issue before the court was whether the handwritten Codicil was admissible to probate.

[19] The court held that the handwritten Codicil was not a valid codicil as it was not an independently created document demonstrating a fixed and final intention as to the testator’s disposition on death. Instead, the court found that the Annotations and Codicil referred to each other and therefore was viewed as one document partially handwritten and partially typed. This document was not properly executed and witnessed and thus failed as a testamentary instrument.

[20] Moreover, the court remarked that even if the Codicil was admissible for probate, typewritten documents cannot be incorporated into a holograph will. The court stated the following in obiter. See pp. 7-8:

… s. 6 of the Succession Law Reform Act limits a holograph Will to one written entirely in the handwriting of the testator. The purpose is to ensure the authenticity of a Will because handwriting generally contains distinctive characteristics that prove the identity of the writer. Typewriting lacks that identifying personal distinctiveness. I agree with the reasoning of Justice Sheard in Re Coate Estate 26 E.T.R. 161 at 170. I respectfully disagree with the decision of the Saskatchewan Surrogate Court in Re Chamberlain Estate (1976) 1975 CanLII 801 (SK QB), 1 W.W.R. 464. I have no difficulty with the doctrine of incorporation by reference applying when the Will into which type written words are to be incorporated is itself a witnessed Will. When those typewritten words are declared incorporated, the statutory requirement of the testator’s signature duly witnessed is wholly satisfied. In the case of a holograph Will, however, incorporation of typewritten words does not meet the statutory requirement. That requirement is that the holograph Will, to be valid, must be “wholly by his own handwriting and signature” and patently the incorporated typewritten words are not in the testator’s handwriting. The doctrine of incorporation by reference was developed to relieve against the harshness of the Wills Act and to give effect to the intentions of a testator. I am not satisfied that the law in Ontario is or should be that typewritten documents can be incorporated into a holograph Will. [Emphasis added.]

[21] The foregoing passage makes clear that the only earlier writing which a holograph will or codicil can incorporate must be one wholly in the handwriting of the testator so that the resulting whole document would be a document sufficient to satisfy the requirements of the statute.

[22] However, unlike the former to authorities, in Chamberlain, Re, 1975 CanLII 801 (SK QB), [1976] 1 W.W.R. 464, 1975 CarswellSask 82 (Surr. Ct.), the court admitted to probate a holograph will, together with a typed document referred to therein. In that case, the deceased completed a printed form of will by which he made a complete disposition of his estate. The document was signed but not witnessed. Months later, the deceased wrote in his own handwriting a paper in which he stated that he had placed in his bank safety deposit box certain title documents and insurance policies and “My will dated 19th August 1972”, made a disposition of jewelry, and directed that his remains be cremated. This paper was signed.

[23] The court held that the handwritten document was a holograph will in conformity with the requirements of The Wills Act, R.S.S. 1965, c. 130, and it incorporated by reference the earlier will, which was in existence at the time and was sufficiently identified. Together, the two documents were admitted to probate. See para. 14:

On the evidence I have no hesitation in finding that the document written wholly in the handwriting of the testator is a valid holograph will, that reference is made in such will to the documents sought to be included in the probate and that such document was in existence when the will was made.

ANALYSIS

[24] The document referred to as Ms. Lacroix’s holograph will is written wholly in her own handwriting (s. 6 of the SLRA), as attested by Ms. Opatovsky in her affidavit dated March 12, 2021. The signature immediately follows the handwriting, and it is apparent that Ms. Lacroix intended to give effect to the document via her signature (s. 7 of the SLRA). The document also indicates clear testamentary intent as it states that “this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.”

[25] However, while the language evinces a deliberate and final expression of Ms. Lacroix’s intention to dispose of her property in accordance with the terms of the draft will, the holograph will does not stand alone as a valid testamentary document, as it does not independently make any disposition of property as required by Bennett v. Toronto General Trusts Corp. The facts of Re Dixon-Marsden Estate are analogous, as the handwriting that counsel sought to be admitted as a holograph will in that case simply stated “the above mentioned are in short those to whom my estate is left”, and did not deal with any dispositions or property.

[26] As well, both Re Dixon-Marsden Estate and Facey v. Smith stand for the principle that a holograph will cannot incorporate by reference a typewritten document, as a holograph will by its very definition must be wholly in the handwriting of the testator. Together these authorities yield the conclusion that the documents before the court cannot be probated.

[27] While the Saskatchewan case Chamberlain Re suggests that a typewritten document may be incorporated into a holograph will, in that case, the holograph will itself made a disposition of jewelry and directed that the testator’s remains be cremated. As such, even if Re Dixon-Marsden Estate and Facey v. Smith are not followed with respect to their commentary that typewritten notes may not be incorporated into a holograph will, the first issue remains, as Ms. Lacroix’s handwritten document does stand as an independently valid testamentary instrument.

[28] For the above reasons, I decline to issue the Certificate.

D. L. Edwards J.