Court File and Parties

COURT FILE NO.: CV-23-93915-ES DATE: 2024 04 16 SUPERIOR COURT OF JUSTICE – ONTARIO

In the matter of the Estate of Kathleen Mary O’Neill, Deceased

RE: D'ARCY O'NEILL Applicant - and – D'ARCY O'NEILL IN HIS CAPACITY AS ESTATE TRUSTEE FOR THE ESTATE OF KATHLEEN MARY O'NEILL and KEVIN WILLIAM O'NEILL and BARRY JOSEPH O'NEILL and CONOR WILLIAM MARTIN O'NEILL and ERIN KELLY ROWE O'NEILL and CALLAN LEWIS HARRINGTON O'NEILL, a minor by his litigation guardian THE CHILDREN'S LAWYER and PATRICK CAHILL, Respondents

BEFORE: C. MacLeod, RSJ

APPEARING: Anna Katyk, for the Applicant, by videoconference Patrick Cahill, by telephone

HEARD: April 16, 2024

Decision and Reasons

[1] The Applicant is the brother of the Deceased. He brings this application to validate a Will made by her on March 22, 2023, approximately two months prior to her death. In his affidavit, the Applicant states that he helped his sister make the Will, that he saw her sign it, but he did not sign his name as a witness because he is a beneficiary. Two other individuals did sign the Will, but they were not actually present. The Will therefore fails to meet the formalities required by s. 4 (2) of the Succession Law Reform Act, RSO 1990, c. S.26, as amended to March 25, 2024. (“SLRA”)

[2] Section 21.1 of the SLRA enacted in 2021 (SO 2021, c. 4, Sched. 9, s. 5) provides that if this Court is satisfied that a document or writing that was not properly executed or made under the SLRA sets out the testamentary intentions of a deceased the Court may, on application, order that the document or writing is as valid and fully effective as the Will of the Deceased.

[3] In this case, the Applicant’s evidence that he assisted his sister to make the Will and saw her sign it is uncontested. He has also produced her driver’s licence and other documents showing her signature. As I pointed out to counsel, however, this effectively means that the Applicant is attesting to the validity of the Will and raises the question as to whether or not the presumption in s. 12 of the Act should apply. While the Applicant did not sign the Will as a witness, he was the only witness to the signature, and it is his affidavit evidence on which the Court must rely. So, he is effectively doing what the statute discourages by acting both as a witness and a beneficiary.

[4] The provision voiding the bequest to a witness is not absolute. Section 12 (3) provides an exception where the Court is satisfied that no undue influence was exerted. There is nothing in the affidavit evidence or the circumstances to suggest undue influence. Indeed, the Will as drafted provides bequests to other beneficiaries superior to what they could expect on an intestacy.

[5] All of the other beneficiaries except for Mr. Cahill have consented to the Order validating the Will. Mr. Cahill attended the hearing by telephone and advised that he did not oppose a declaration of validity. Under the Will, he is entitled to a specific bequest of “10% of the estate”.

[6] It is possible Mr. Cahill has claims against the Estate outside of the Will and he indicated he might seek legal counsel to consider those options. He agreed that validation of the Will would be a positive step and, although he did not give sworn testimony or file any documents, he indicated that he had no evidence to suggest that the document did not represent the wishes of the deceased. He has no reason to believe that the document is not what it purports to be.

[7] Under the circumstances, I am satisfied that the Last Will and Testament was signed by the Deceased but was not witnessed by the subscribing witnesses. Nevertheless, the evidence supports a finding that the document contains the testamentary intentions of the deceased and it is appropriate to make an Order under s. 21.1.

[8] The Applicant asks that the costs of bringing the application be paid from the Estate. That appears appropriate because the Estate cannot be administered without resolving the validity of the Will.

[9] In summary, there will be an Order declaring the testamentary instrument to be a valid Will. The costs of the application as set out in the costs outline shall be paid by the Estate.

Justice C. MacLeod Date: April 16, 2024

Released: April 16, 2024