Court File and Parties

COURT FILE NO.: CV-21-00660853-00ES

DATE: 20210824

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BMO TRUST COMPANY, Applicant

AND:

WAYNE COSGROVE, CHRISTINE ASHTON JONES, BARBARA LEEVES, STEPHEN KEAY, LOUIS NETTLETON, HOSPITAL FOR SICK KIDS, DEBORAH STEVENS, CAROL PAABOR and EILEEN ZERAFA, Respondents

BEFORE: Dietrich J.

COUNSEL: V. Ross Morrison, Baira Oldvurova, and Howard Dyment, for the Applicant

Constantine Alexiou, for the Respondent Eileen Zerafa

HEARD: August 10, 2021

ENDORSEMENT

Overview

[1] The applicant BMO Trust Company brings this application, in its capacity as agent for the Estate Trustee, James Cosgrove, appointed in the Last Will and Testament of the late Nola Louise Bogie, dated April 24, 2004 (the “Will”). It seeks an order of this court giving the opinion, advice, and direction of the court regarding the validity of a holograph codicil to the Will, and whether the codicil should be admitted to probate. Specifically, the applicant seeks a declaratory order that the holograph codicil is a valid testamentary document which, together with the Will, form the Last Will and Testament of Nola Louise Bogie (the “Deceased”).

[2] For the reasons that follow, I find that the holograph codicil was not signed by the Deceased and is therefore not a valid codicil. It should not be admitted to probate.

Background Facts

[3] The Deceased died on August 12, 2020.

[4] The Deceased executed the Will on April 23, 2004 in the presence of a lawyer, Shil K. Sanwalka, who had prepared the Will, and another witness.

[5] Under the Will, the Deceased appointed the respondent Mr. Cosgrove as Estate Trustee and made a bequest to him of all her personal property. The Deceased disposed of the residue of her estate by leaving a $5,000 legacy to the Hospital for Sick Children and dividing the remainder of her estate in half, with one-half to be distributed to Mr. Cosgrove, or his issue per stirpes, and the other half to be divided among each of Deborah Stevens, Carol Paabor and the respondent Eileen Zerafa (“Ms. Zerafa”) in equal shares, or their respective issue per stirpes. Ms. Stevens and Ms. Paabor do not oppose or take any position on this application.

[6] On the cover page of the Will, the Deceased wrote, by hand, “Codicil attached. Nola Bogie 1 copy typed 1 copy handwritten” and “The Last Will and Testament of Nola Louise Bogie April 23, 2004.”

[7] The handwritten codicil and the typewritten Codicil, created on or about August 21, 2017, contain the same text. The effect of the codicil was, among other things, to appoint a yet to be named Executor and Trustee. A blank is left for the name of that individual or entity. Other significant changes included eliminating the gift of personal property to Mr. Cosgrove and revising the distribution of the residue of the estate such that the gift to the Hospital for Sick Children would be revoked and replaced with a legacy of $5,000 for the care of the Deceased’s cats, and the remainder of the residue would be divided such that there would be a distribution of one-fifth of the residue of the estate to each of: a) Mr. Cosgrove (or his issue if he predeceased the Deceased); b) Christine Ashton-Jones (or her husband and issue if she predeceased the Deceased); c) Barbara Leeves (or her issue if she predeceased the Deceased); d) Steve Keay (or his issue if he predeceased the Deceased); and e) Louis Nettleton (or his issue if he predeceased the Deceased), and Mr. Nettleton would also receive future royalty payments, copyrights and certain personal property.

[8] In both the handwritten and typed codicil, the Deceased explained that she made the typewritten version in case there were “any difficulties with reading handwriting.” On the typewritten version, she typed “UPDATED ON printout copy Monday, August 21, 2017. This is NOT the date it is signed and witnessed. THIS IS THE TYPED DUPLICATE OF THE CODICIL TO BE CONSIDERED PART O[sic] THE LAST WILL AND TESTAMENT OF ME, NOLA LOUISE BOGIE, ACCORDING TO ONTARIO LAW. I am certified in Holistic Medicine at this time with the Canadian Examining Board of Health Care Practitioners, and I am using them AS WITNESSES TO MY CODICIL.” … I have enclosed [adoption records] along with my Last Will and Testament originally dated April 23, 2004, with the attached Codicil which I hand wrote August 21, 2017, along with a typed copy.”

[9] At the end of the handwritten codicil, the Deceased handwrote the following:

“End of page 3 of the Codicil for the Last Will and Testament of me, Nola Louise Bogie

Signed, Published and Declared by the said Testatrix, Nola Louise Bogie, at the City of Toronto, in the Municipality of Toronto, in the Province of Ontario,

As and for her Codicil as an attachment amending her Last Will and Testament.

Dated on: [left blank]”

[10] The typewritten version of the Codicil was never signed or witnessed, and the applicant does not seek a declaration of validity in respect of it.

[11] In September 2017, the Deceased contacted the Law Society of Ontario (the “LSO”) to request her file relating to the Will. Since the Deceased had executed the Will, Mr. Sanwalka’s licence had been suspended and the LSO was in possession of the file. The clerk at the LSO, Linh Hoang, requested a written authorization, direction, and identification from the Deceased. The Deceased responded, provided the requested documentation, and advised that she had “hand written a Codicil (not yet signed).”

[12] On or about September 12, 2017, the Deceased sent a handwritten letter to the LSO, which she signed, in which she stated: “I have just completed a handwritten Codicil making changes to this Will”, and she asked Ms. Hoang to send the Will to her. The LSO did not have the original but sent a copy of the signed Will to the Deceased. The Deceased treated the copy she received as the original, but eventually, the Deceased came into possession of the original Will.

Issue

[13] The issue is whether the Deceased’s handwriting of her name in the attestation clause constitutes a “signature” for the purposes of the formalities for executing a Will as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”).

Positions of the Parties

[14] The supplicant asserts that the handwritten codicil is valid because it is a “holograph” codicil made in accordance with the formalities as set out in s. 6 and s. 7 of the SLRA. In particular, the testator’s signature is found not once, but twice, in the attestation clause, and this placement of a signature in a will does not render it invalid in accordance with s. 7(2)(c )(i) of the SLRA.

[15] The respondent, Ms. Zerafa, asserts that the handwritten codicil is not valid. She submits that it was not made in accordance with the required formalities because it was not signed by the Deceased. While the Deceased’s handwriting of her name occurs in various places throughout the handwritten codicil, the Deceased had no fixed intention to sign, or give effect to, the codicil when she wrote her name in various places throughout the codicil, including in the attestation clause.

Law

[16] Section 6 of the SLRA sets out the statutory requirements for creating a holograph will or codicil: “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.”

[17] Subsection 7(1) of the SLRA states that a signature on a will, whether holograph or not, must appear “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.”

[18] Subsection 7(2)(c)(i) of the SLRA provides, inter alia, that “a will is not rendered invalid by the circumstance that the signature is placed among the words of a testimonium clause or of a clause of attestation.”

[19] Subsection 7(2) (e) provides that a will is not rendered invalid by the circumstance that “there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.”

Analysis

[20] The applicant asserts that the Deceased’s signature appears not once but twice in the attestation clause of the holograph codicil. It further asserts that there is sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the holograph codicil is written, and therefore, in accordance with subclause 7(2)(c)(i) and subsection 7(2)(e) of the SLRA, the holograph codicil contains the Deceased’s signature and has not been rendered invalid. The applicant further asserts that this is so notwithstanding that the Deceased left a blank in the holograph codicil for the name of the Executor and Trustee and two separate blanks for the date. Neither of these omissions, it submits, would render the holograph Codicil invalid.

[21] The applicant further asserts that, for the same reasons, the holograph codicil should not be rendered invalid even though the Deceased did not consider her holograph codicil to have been signed as of September 12, 2007 when she disclosed this fact to Ms. Hoang.

[22] I agree that the failure to appoint an Executor and Trustee in the holograph codicil would not render the codicil invalid. The date of the codicil, if not specifically noted in the codicil, could, potentially, be determined in other ways. These omissions are not fatal.

[23] However, it is well-settled law that, at least for the time being, Ontario is a “strict compliance” jurisdiction for assessing the validity and enforceability of testamentary documents. The formalities set out in the SLRA must be complied with. The intention of the testator, no matter how plain, as gleaned from the substantially compliant document, is irrelevant. See: Sills v. Daley (2002), O.R. (3d) 19, 2003 CanLII 72335 (Ont. S.C.) at para. 15; Papageorgiou v. Walstaff Estate, 2008 CanLII 32305 (Ont. S.C.) at para. 30; and Re Swiddle Estate, 2021 ONSC 1434 at para. 7.

[24] In this case, it is not disputed that the codicil was not witnessed, but no witness is required if the document is made “wholly by [the testator’s] own handwriting and signature” per s. 6 of the SLRA. It is also not disputed that the holograph codicil was written wholly in the Deceased’s hand. The evidentiary record includes numerous examples of the Deceased’s handwriting and her signature. This evidence confirms that that the Deceased’s signature is indistinguishable from her handwritten version of her full name.

[25] What distinguishes a “signature” from writing out one’s name in long hand, for the purposes of this analysis, is that, it must be apparent that what is alleged to be the act of signature was specifically intended by the testator to give legal effect to the document, per s. 7(1) of the SLRA. The SLRA specifically requires a “signature” in addition to the wholly handwritten text.

[26] As noted by Justice Orsborn, of the Supreme Court of Newfoundland and Labrador, in Re Oliver Estate, 1993 CanLII 8426 (NLSC) at para 42, affirmed on appeal, Re Oliver Estate, 1994 CanLII 9727 (NLCA): “… The signature is that which is required to breathe the life of intention into the preceding directions. Without that signature the document remains incomplete as an expression of the writer’s fixed intention.”

[27] In Papageorgiou, Justice Strathy, as he then was, stated at para 29: “There is no exception to the statutory requirement that the will must be signed … The making of a will is an important and solemn act and the law requires that it must be confirmed by the signature of the testator.”

[28] Based on the evidentiary record, I find that the Deceased, in writing her name a number of times when drafting the holograph codicil, including twice in the attestation clause, did not intend to give legal effect to the holograph codicil.

[29] The holograph codicil was an unfinished document at the time of the Deceased’s death. The first sentence of the document reads: “This Codicil is to be considered part of the Last Will and Testament of me, Nola Louise Bogie, signed, witnessed, and dated on ______________.” It is apparent on its face that the Deceased intended to insert that date when she signed the document. At the end of the document, there is a second blank for the date following the word “Date: ______________”, which blank is next to a space where it is likely that the Deceased would have inserted her signature. Neither of these blanks was filled in prior to the Deceased’s death nor was the blank where that name of the Executor and Trustee was to be inserted.

[30] Though it was not legally required, the Deceased intended to sign the holograph codicil in the presence of witnesses. She had even identified the witnesses, being members of the Canadian Examining Board of Health Care Practitioners, who would witness her signature. However, there is no evidence that the Deceased ever signed her holograph codicil in the presence of these witnesses or otherwise with an intention to give the codicil legal effect.

[31] The documentary evidence supports the conclusion that the Deceased appreciated that in order for the holograph codicil to be valid, she needed to sign it. The typed version of the codicil states: “UPDATED ON printout copy Monday, August 21, 2017. This is NOT the date it is signed and witnessed.” The typed duplicate version also shows a blank after the words “Dated on.” In the Deceased’s letter to Ms. Hoang, dated September 12, 2017, the Deceased specifically stated that she had “handwritten a codicil (not yet signed).” [Emphasis added.]

[32] There is no evidence that the Deceased completed and signed the holograph codicil between September 12, 2017 and August 12, 2020 when she died. The text that appears on the handwritten codicil appears in the typed version dated August 10, 2017. The typed version specifically confirms that the handwritten document was not signed.

[33] The documentary evidence contains a number of statements by the Deceased that she had not signed the holograph codicil. Further, the Deceased’s estate planning notes found at her residence following her death include this notation: “Holographic Will … put in own writing & sign it.” [Emphasis added.]

[34] I find that the Deceased appreciated both that she had not signed the holograph codicil and that she needed to do so in order for it to be valid. For reasons unknown, she did not sign it. The inclusion of her handwritten name twice in the attestation clause does not make it apparent that the Deceased intended to make the holograph codicil binding. The Deceased’s own statements, that she had not signed the holograph codicil, preclude any such finding. The Deceased did not comply with the formalities for executing the holograph codicil as set out in the SLRA. The lack of a signature is a defect that cannot be remedied.

Disposition and Costs

[35] The holograph codicil is not a valid testamentary document and it cannot be admitted to probate.

[36] The respondent Eileen Zerafa has been successful in this matter and is entitled to her costs. She seeks costs of $15,423.47, which I find to be fair and reasonable. I fix Ms. Zerafa’s costs at $15,423.47, inclusive of disbursements and HST. These costs shall be payable from the Deceased’s estate, as it was a consequence of the Deceased’s actions in preparing the handwritten codicil that the costs were incurred.

[37] It was reasonable for the applicant BMO Trust Company to bring this application as agent, on behalf of the Estate Trustee named in the Will. An interpretation of the Deceased’s testamentary documents arose as a consequence of the Deceased’s own drafting. It seeks costs of $32,614.17, payable by the Deceased’s estate. I fix the applicant’s costs at $32,614.17, inclusive of disbursements and HST. The costs shall be payable by the Deceased’s estate and are subject to review by the beneficiaries of the Deceased’s estate on a passing of accounts, if any.

Dietrich J.

Date: August 24, 2021