COURT FILE NO.: CV-22-33-00ES
DATE: 2023/09/21
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF CAROL LISCOMBE, also known as CAROL DONNA LISCOMBE, deceased
BETWEEN:
Annette Groskopf
Applicant
– and –
Judy Rogers, David Liscombe, Michael Liscombe, Kelly O’Hoski, Erin O’Hoski, Kevin Hoover, Ryan Groskopf, Tracy House-Hoover, Victoria Liscombe, Jennifer Liscombe, Keith Kruaskopf, and Sarah Rogers Respondents
Andrew D. Felker / Rebecca M. Ernst, for the Applicant
Jean-Claude Rioux, for the Respondent, Judy Rogers
Heather E. Watson, for the Respondent, Michael Liscombe
HEARD: September 11, 2023
A.D. Hilliard
Overview
[1] The Applicant, Ms. Annette Groskopf, has brought this application seeking:
an Order that the undated document executed by Carol Liscombe purporting to be her last will and testament be found as valid and fully effective as if it had been properly executed or made;
an Order that a Certificate of Appointment of Estate Trustee with a Will shall be issued in relation to the aforesaid document to the named Estate Trustee, Annette Groskopf, upon submission of the usual documentation, without the necessity of filing an Affidavit of Execution.
[2] Mr. Michael Liscombe, the brother of the deceased, Ms. Carol Liscombe, is the only Respondent opposed to the relief sought. Mr. Liscombe argues that the undated document purporting to be the last will and testament of Ms. Liscombe should not be validated pursuant to section 21.1 of the Succession Law Reform Act as it does not meet the legal requirements.
[3] For the reasons that follow the Application is granted.
Background
[4] Ms. Liscombe died on February 11, 2022. She had no spouse and no children. Ms. Liscombe was survived by three siblings: Judith Rogers, David Liscombe, and Michael Liscombe, and was predeceased by one: Sharon O’Hoski.
[5] Sometime in 2004, Ms. Liscombe completed a fill-in-the blanks style document in her own handwriting. In pre-printed text, the document begins “This is the Last Will and Testament”. The document is signed but not dated. There is a space for two witnesses to sign but those are blank. The document names an Executrix – Annette Grospkopf, and an alternate, Judy Rogers. Specific bequests are set out and provision is made for the residue of the estate to be divided between Ms. Grospkopf and her sister, Sarah Rogers. The document also makes provisions for her dogs to be cared for, although Ms. Liscombe’s dogs ultimately predeceased her.
[6] The alleged will was found in a lock box in the home where Ms. Liscombe was living at the time of her death. Along with this document, other handwritten notes were found, including instructions to Ms. Grospkopf on how to deal with the distribution of the estate. There was also a document entitled “Estate Planning & Inventory” that is another fill-in-the-blanks form that has Ms. Liscombe’s handwritten notations.
[7] The document that purports to be Ms. Liscombe’s last will and testament provides nothing for Mr. Michael Liscombe from the estate. It appears that Mr. Liscombe was purposely excluded from Ms. Liscombe’s beneficiaries.
[8] It is not disputed that in and around the time the document was prepared, Mr. Liscombe and Ms. Liscombe were involved in a disagreement that had strained their relationship. The notes left by Ms. Liscombe confirm the animosity existing at the time between her and Mr. Liscombe.
[9] There is no other document purporting to be a will left by Ms. Liscombe. There is no evidence that she ever attended at a lawyer’s office to have a will formally prepared and executed. No document was found that could constitute a revocation or codicil to the document created in 2004.
[10] In the final years of her life, Ms. Liscombe and Mr. Liscombe reconciled their differences and became quite close. Mr. Liscombe was Ms. Liscombe’s primary caregiver in her final days.
The Law
[11] In 2021 amendments to the Succession Law Reform Act (SLRA) were introduced through the Accelerating Access to Justice Act, 2021. Those amendments included a new section in the SLRA – section 21.1, which provides the Court the ability to validate a will that was not executed in conformity with the Act. That provision came into force on January 1, 2022:
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.
21.1(3) Subsection (1) applies if the deceased died on or after the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.
[12] There are only a handful of cases that have interpreted section 21.1 of the SLRA.
[13] In the unreported decision of Grattan v Grattan[^1], Justice Johnston validates an unsigned document prepared by a lawyer on the instructions of the deceased. Adopting the approach of Courts in British Columbia and Manitoba, Justice Johnston finds that the unsigned document represented the fixed and final intentions of the deceased and there was no evidence that she had changed her mind in the period between when instructions were provided and her death. It is notable, however, that the intervening period in that case was a mere fifteen (15) days between when final instructions regarding changes were communicated to the lawyer and the death of the testator.
[14] In Cruz v Public Guardian and Trustee,[^2] the first of a trilogy of decisions written and released by Justice Myers, the deceased prepared and signed a will, but failed to get it witnessed. In determining that the will should be validated pursuant to section 21.1, Justice Myers wrote, “[t]he deceased just blew the formalities. Fixing this type of mistake is precisely what s. 21.1 seems to be for.” Justice Myers also adopted the fixed and final intentions analysis, setting out that the standard of proof is the balance of probabilities.
[15] The second of the three cases decided by Justice Myers involved an application for disclosure of a solicitor’s file, rather than an application seeking validation of a purported will.[^3] Although he was not ruling on the validity of a draft will, Justice Myers did express some reservations about whether section 21.1 could be used to validate the draft on the facts before him. Justice Myers again indicated that the test is whether the document records the fixed and final intentions of the testator.
[16] Finally, in Vojska Estate v. Ostrowski, Justice Myers again uses section 21.1 to find that a will prepared by and signed in the presence of a lawyer, but not signed by the lawyer, was indeed valid. Justice Myers states: “It is hard to imagine a more textbook example of a case for which the new power was intended.”[^4] In that case, the will was in the lawyer’s possession at the time of the death of the testator and there was no evidence that the will was ever revoked or changed. Justice Myers does note, however, that the mistake about formalities rested with the lawyer in that case and not the deceased.
[17] I would note that in all four (4) of the above cases, the Respondents were not contesting the request to validate the purported will. The issue was simply what is the test under the new section and could the document be validated by the Court pursuant to s. 21.1.
Analysis
[18] Since Ms. Liscombe died after the new provision came into force, the document that purports to be her last will and testament can be validated under section 21.1.
[19] Ms. Grospkopf argues that this case is much like the Cruz matter, in that Ms. Liscombe essentially just blew the formalities by failing to have the document dated and witnessed. Had Ms. Liscombe written the entire document out by hand, rather than use a pre-printed form, it would have been a valid holographic will. There is no dispute about the document having been prepared by Ms. Liscombe.
[20] Mr. Liscombe argues that the document purporting to be Ms. Liscombe’s last will and testament does not represent her fixed and final intention. He points out that the document is not dated, not witnessed, and leaves blank the section for an alternate caregiver for her dogs. The document is a draft, according to Mr. Liscombe, and should not be validated as Ms. Liscombe’s will any more than the other notes found along with that document. In support of his argument that the document is merely a draft, Mr. Liscombe also refers to Ms. Liscombe’s employment history, working for lawyers and accountants, noting that Ms. Liscombe certainly would have known that without witnesses a will is not valid.
[21] Examining first the alleged will itself, I find that the document does not appear to be a draft. An executrix and alternate are appointed. The document addresses the entirety of Ms. Liscombe’s estate and it is signed. The lack of an alternate caregiver for her dogs and a small handwritten correction that is not initialed, does not, in my view, support a finding that the document is a draft.
[22] In determining whether the alleged will represents Ms. Liscombe’s fixed and final intentions, I have considered the document filled out by Ms. Liscombe entitled “Estate Planning & Inventory” found in the lock box with the alleged will. In that other document, in Ms. Liscombe’s handwriting, she indicates “YES” beside the question, “Have you made a Will?” Ms. Liscombe’s answer about whether she had made a will is evidence that Ms. Liscombe herself was of the view that the document she prepared was her will, representing her fixed and final testamentary intentions. Additionally, Ms. Liscombe notes that the will is located in the lock box. That document corroborates Ms. Grospkopf’s evidence that Ms. Liscombe had made a will and had stored it in a lock box for safe keeping. Furthermore, there is no evidence to contradict Ms. Grospkopf’s assertion that she found the purported will in the lock box, just where Ms. Liscombe said it would be.
[23] In the alternative, Mr. Liscombe argues that the document should not be validated as Ms. Liscombe’s will as his reconciliation with Ms. Liscombe proves that it could not have been Ms. Liscombe’s fixed and final intention that Mr. Liscombe be eliminated as a beneficiary of the estate. In support of that alternative argument, Mr. Liscombe cites a decision from the British Columbia Court of Appeal wherein that Court held that the material time for determining testamentary intentions may vary depending on the circumstances.[^5]
[24] In assessing whether the passage of time should be considered in making a determination of validity under section 21.1, other sections of the SLRA provide context and guidance.
[25] Section 17(1) of the SLRA specifically invalidates the argument Mr. Liscombe is making in relation to a validly executed will. The section confirms that “a will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances.”
[26] I have also considered section 22 of the SLRA:
Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to,
(a) The property of the testator; and
(b) The right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20(2).
[27] Considering the issue of timing in the context of sections 17 and 22 of the SLRA, I find that the relevant time for determining whether the document created represented Ms. Liscombe’s fixed and final testamentary intentions was at the time the document was made. The reconciliation of Ms. Liscombe and Mr. Liscombe is insufficient evidence to find that the intentions set out in the alleged will were vitiated with the passage of time. Moreover, there is no evidence that Ms. Liscombe intended to change her will to include Mr. Liscombe as a beneficiary.
[28] Even though I find that Ms. Liscombe spoke to Ms. Grospkopf about possibly changing her will, there is no evidence that Ms. Liscombe took any further steps in that regard and there was no document found that purports to be a codicil or revocation. Ultimately, there is no evidence upon which I could conclude that even when Ms. Liscombe had been contemplating changes to her will that those changes were to include Mr. Liscombe as a beneficiary.
Conclusion
[29] The evidence of Ms. Grospkopf, which I accept, corroborated by the documentary evidence reviewed above, convinces me on a balance of probabilities that the handwritten fill-in-the-blanks document prepared by Ms. Liscombe meets the test under s. 21.1 of the SLRA. I find that the document should therefore be validated as the last will and testament of Carol Liscombe.
[30] As the Applicant was entirely successful, she is entitled to her costs. However, I grant costs on a partial indemnity basis only. At the time the Application was brought there were no reported cases in Ontario interpreting section 21.1. Neither party unnecessarily lengthened nor complicated the proceedings. A court would have had to make a determination regardless of whether Mr. Liscombe contested the application or not.
Application granted.
Costs awarded to the Applicant payable by the Respondent, Michael Liscombe, fixed in the amount of $20,502.23.
A.D. Hilliard
Released: September 21, 2023
COURT FILE NO.: CV-22-33-00ES
DATE: 2023/09/21
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF CAROL LISCOMBE, also known as CAROL DONNA LISCOMBE, deceased
BETWEEN:
Annette Groskopf
Applicant
– and –
Judy Rogers, David Liscombe, Michael Liscombe, Kelly O’Hoski, Erin O’Hoski, Kevin Hoover, Ryan Groskopf, Tracy House-Hoover, Victoria Liscombe, Jennifer Liscombe, Keith Kruaskopf, and Sarah Rogers
Respondents
REASONS FOR JUDGMENT
A. D. Hilliard, J.
Released: September 21, 2023
[^1]: 22-0054, February 1, 2023 (Belleville) [^2]: [2023] O.J. No. 2671 at para 9. [^3]: White v White Estate, [2023] O.J. No. 2800. [^4]: [2023] O.J. No. 2934 at para. 12. [^5]: Hadley Estate (Re), 2017 BCCA 311 at para. 37.