Court File and Parties
COURT FILE NO.: CV-22-45218-ES DATE: 2022/07/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: In the Estate of Diane Frances Pearce, Deceased
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Eric L. Honey, for the Estate
HEARD: July 6, 2022 – in writing
ENDORSEMENT
[1] This is an Application for Appointment of Estate Trustee with a will. Mr. Allan Pearce seeks to admit a document entitled "Outline of Will of Diane Frances Pearce" to probate as the last will and testament of the deceased. The document is in point form, but is signed and witnessed. I have an affidavit of execution by one of the witnesses who attests that she was present with the deceased and the other witness and saw the deceased sign it in their presence.
[2] The document contains three lump sum gifts and the outline of a testamentary trust. It names the Applicant, Allan Pearce, as the "Trustee" but is ambiguous as to whether this means only the Trustee of the testamentary trust or whether she is naming him as Trustee (Executor) of her estate.
[3] I have an affidavit from Mr. Honey, the solicitor for the estate. He attests that he believes the deceased intended to name Mr. Pearce as her executor because she was not familiar with the terminology and the trust is the entire residue of the estate. That residue is to be divided three ways and paid out over time.
[4] There is no particular form of will required in Ontario provided the intention of the testator may be discerned from the document. There are formalities set out in s. 3 and 4 of the Succession Law Reform Act, RSO 1990 c. S.26 as amended. Those require that the will be in writing and by signed by the testator before two witnesses present at the same time. This document could meet those formal requirements provided it is clear that the document was intended as a will and sets out the testator's intentions with sufficient precision.
[5] The difficulty here is ambiguity which might possible be rectified by additional evidence. The subscribing witness attests that she saw the document "Marked as Exhibit A" signed by the deceased in the presence of the two witnesses, but she does not describe the circumstances or what knowledge she has concerning the intentions of the deceased. Similarly, Mr. Honey states his belief that the deceased intended to appoint Allan Pearce as her executor, but he does not state the basis for his information and belief.
[6] On the face of it, this document was an outline for the preparation of a new will. It may well be that the deceased did not have time to consult her lawyer or to have a formal will drawn up and intended to convert the outline into a testamentary instrument. The only evidence of that, at the moment, is the fact that the deceased signed the document in front of two witnesses. There is no explanation from anyone present as to why the "outline" was signed and what information there may be that the deceased intended the outline to serve as her will. There is no additional writing on the document stating that it is to be treated as a will.
[7] This is significant because amongst other things there is a subheading in the document. That subheading reads as follows:
"To replace 02April2013 Will drafted and the amendments drafted 11Jun2014 and 09Nov2017".
[8] If this document is accepted as a new will, then it would have to be inferred from the subheading that it was intended to revoke the earlier wills, but it does not contain the active language, "I hereby revoke all previous wills". Nor is there any evidence of the content of those wills and how they might differ from the outline. There is ambiguity as to whether the preparation of a new will and the revocation of the previous will was a future intention or whether the testator intended this document to carry those intentions into effect.
[9] This is a significant estate with a sworn value of $1.8 million. I would require additional evidence in order to be confident that the "outline" was intended to be a will and intended to revoke earlier wills when it was signed by the deceased.
[10] At a minimum I require the following information:
a. Is the other subscribing witness still available and is he prepared to swear an affidavit?
b. What were the circumstances surrounding the preparation of the outline and the decision to sign it in front of witnesses? Is there any additional evidence that this point form document was intended to be given effect as a new will?
c. Are the previous testamentary instruments named in the outline still available and how do they differ from the new outline will?
d. Are all of the beneficiaries content that the document be treated as the last will of the deceased and to take the gifts provided in the outline?
e. Are there other beneficiaries who would be entitled to a share of the estate on an intestacy or were named in the previous will (s) so that they should be entitled to notice.
[11] I am adjourning this matter to receive additional evidence. Counsel may either provide supplementary affidavit evidence or may request an oral hearing to make additional submissions or both.
Justice C. MacLeod
Date: July 7, 2022
COURT FILE NO.: CV-22-45218-ES DATE: 2022/07/07
ONTARIO SUPERIOR COURT OF JUSTICE
RE: In the Estate of Diane Frances Pearce, Deceased
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Eric L. Honey, for the Estate
Endorsement
Regional Senior Justice C. MacLeod
Released: July 7, 2022