Ontario Superior Court of Justice

Court File No.: CV-25-00034522-00ES
Date: 2025-06-10

Between:
Robert Dunham (Applicant)
and
Clarence Earl Gamble Jr., Windsor Cancer Centre Foundation, and Shriners Hospitals for Children (Respondents)

Appearances:
Kathleen M. Montello, for the Applicant
Gurman S. Bhatti, for the Respondent, Clarence Earl Gamble Jr.

Heard: April 29, 2025

Reasons for Judgment
Jasminka Kalajdzic

Introduction

[1] The Applicant seeks an order that the Last Will and Testament of Lynn Gloria Gamble dated January 7, 2021 (the “Will”) be found valid and fully effective as if it had been properly executed. He requires this order because of an irregularity with the execution of the Will. He also seeks an order that a Certificate of Appointment of Estate Trustee with a Will be issued. Finally, he seeks a declaration that the beneficiary identified in the Will as the Windsor Essex County Cancer Foundation be deemed to be the Windsor Cancer Centre Foundation.

[2] The Respondent, the brother of the deceased, moves for an order requiring the Applicant to make best efforts to obtain from RBC its access records for the deceased’s safety deposit box. The Respondent submits that until the request for the records is made, the Applicant is unable to rebut the presumption that the Will was destroyed by Ms. Gamble with the intention of revoking it.

[3] For the reasons that follow, I grant the relief sought by the Applicant and dismiss the Respondent’s motion.

Facts

The Parties

[4] Ms. Gamble died on November 6, 2024. She died with no spouse and no children. She was predeceased by her parents. Her only living family member was her brother, the Respondent, Clarence Earl Gamble Jr.

[5] The uncontroverted evidence is that Ms. Gamble had been estranged from her brother since at least 2010.

[6] Ms. Gamble and the Applicant, Mr. Dunham, had been close friends for many years, as had their parents.

[7] In or around September 2024, the Respondent’s wife, Cynthia, reconnected with Ms. Gamble after a long period of estrangement. Cynthia estimates that they spoke on the phone three times before Ms. Gamble's death.

[8] According to the Applicant, Ms. Gamble telephoned him a couple of weeks before she died and said that Cynthia was harassing her. The Applicant was instructed not to give any information to Cynthia if she contacted him.

The Will

[9] Amidst Ms. Gamble’s personal papers at her death, the Applicant found a photocopy of a Will executed by Ms. Gamble on January 25, 2012, as well as the Will. A Word copy of the Will was found on her computer.

[10] The attestation page of the Will (page 3) appears to be original, but the first two pages appear to be photocopies.

[11] Ms. Gamble’s co-worker has confirmed that he was present together with a second witness when Ms. Gamble signed her Will. The Will clearly sets out Ms. Gamble’s testamentary intentions.

[12] In her Will, Ms. Gamble appointed the Applicant to be the Estate Trustee and residuary beneficiary of her estate. The other beneficiaries are her brother (in the amount of $100), the Windsor Essex County Cancer Centre Foundation (in the amount of $100,000), and Shriners Hospitals for Children (in the amount of $100,000).

[13] Under the 2012 Will, the Respondent was similarly disinherited, having been allocated only $100. The same two charities named in the Will were also named in the 2012 Will.

[14] In addition to appointing the Applicant as her Estate Trustee and residuary beneficiary, Ms. Gamble designated the Applicant the beneficiary of several financial products. The Applicant had already received the proceeds of many of these accounts by the date of the hearing.

[15] Ms. Gamble left detailed written instructions for the Applicant, dated August 13, 2024, about her funeral arrangements and other matters. In the notes, she repeatedly stated that the Respondent should have no part of her estate or her funeral arrangements. She also stated in the notes that an original copy of the Will was located in her safety deposit box at RBC.

[16] The Applicant does not have access to the safety deposit box. However, the branch manager at RBC has confirmed that the safety deposit box does not contain the original Will or a more current will.

[17] The Respondent has asked that the Applicant request the access history of the safety deposit box, which the Applicant has refused to do.

Issues

[18] The issues to be decided are:

1. Should the Applicant be compelled to request the access records of Ms. Gamble’s safety deposit box from RBC?
2. Is the Will a valid and fully effective will?
3. Should the Windsor Cancer Centre Foundation be deemed to be the charity named as a beneficiary in the Will?

Law and Analysis

a. Request for Production of RBC Access Records

i. Legal Framework

[19] The test for production of documents is that the document must be relevant to the proceeding.

[20] In this proceeding, the Applicant seeks to prove the Will. To do so, he must show that it was signed by the testator in the presence of two or more attesting witnesses present at the same time who subscribed the will in the presence of the testator: Succession Law Reform Act, RSO 1990, c S.26, s. 4(2) (“SLRA”).

[21] The Respondent, however, submits that the court must treat the Will as a lost will because the original will could not be found.

[22] To prove a lost will, the Applicant must:

1. Provide proof of the due execution of the will;
2. Provide particulars that trace possession of the will to the date of the testator’s death, and afterwards if the will was lost after death;
3. Provide proof of the contents of the will; and
4. Rebut the presumption that the will was destroyed by the testator with the intention of revoking it.

See Sorkos v. Cowderoy, para 8.

[23] The Respondent’s motion is concerned only with the fourth element of the test: whether the Applicant has rebutted, on the balance of probabilities, the presumption that the Will was destroyed by the testator with the intention of revoking it: Sorkos, para 10.

[24] Subsection 15(d) of the SLRA requires that in order for its revocation to be effective, a will must be destroyed by “burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it”.

[25] Subsection 15(d) requires both the destruction of a will and the actual intention to revoke it. Therefore, in order to rebut the presumption, the Applicant must demonstrate either (i) that the Will was not destroyed, or (ii) that there was no intention by Ms. Gamble to revoke the Will.

[26] In determining whether the presumption has been overcome, courts may consider many factors, as summarized in Goold Estate v. Ashton, 2016 ABQB 303, para 71, aff’d 2017 ABCA 295. These include the following:

• Whether the terms of the will are reasonable;
• The testator’s relationship with the beneficiary;
• Whether the testator’s personal effects were destroyed prior to the search for the will;
• The testator’s nature and character in taking care of her personal effects;
• Whether there were any dispositions of property that confirm or contradict the terms of the copy of the will sought to be probated;
• Statements made by the testator that confirm or contradict the terms of the distribution set out in the will;
• Whether the testator was of the character to store valuable papers;
• Whether there is evidence the testator understood the consequences of not having a will and the effects of intestacy;
• Whether the testator made statements to the effect that she had a will.

[27] The Respondent submits that the Applicant has not rebutted the presumption that Ms. Gamble destroyed the Will with the intention of revoking it and cannot do so without production of the RBC access records.

ii. Analysis

[28] Having regard to the totality of the evidence, I find that the Applicant has rebutted the presumption that the Will was destroyed with the intention of revoking it. I do not agree, therefore, that the production of the RBC access records is necessary for the Applicant to rebut the presumption.

[29] I rely on the following evidence, listed by reference to the Goold factors, in determining the presumption has been overcome:

• The terms of the Will are reasonable. The Will is consistent with the terms of her previous 2012 will and with the designation of the Applicant as beneficiary in several financial products.
• Ms. Gamble’s relationship with the beneficiaries under her Will were good up to the date of her death. The Applicant was her closest friend.
• There is little evidence that Ms. Gamble’s personal effects were destroyed prior to the search for the Will. Her personal effects were intact. The Respondent relies on the presence of a paper shredder in Ms. Gamble’s basement to suggest that she shredded her Will. He was in the house and observed the shredder. This is a factor to consider, but its location in the basement and the absence of evidence that it had been used prior to her death or that it contained remnants of the Will diminish its weight.
• Ms. Gamble took great care of her personal effects, as evidenced in her detailed August 13, 2024 notes. The absence of the original Will in her safety deposit box is a factor to consider.
• There were no dispositions of property to other beneficiaries that contradict the terms of the Will. Ms. Gamble went so far as to stipulate in her August 13, 2024 notes that her brother and his family were not to receive any personal items whatsoever.
• Ms. Gamble had two or three telephone conversations with Cynthia, the Respondent’s wife, in the months before her death. They did not meet. There was a note in Ms. Gamble’s purse stating, “Call Cynthia.” Even on Cynthia’s own evidence, however, there was no suggestion that during their telephone calls, Ms. Gamble mentioned changing her Will. There was no evidence of any reconciliation between the Respondent and Ms. Gamble, nor was there evidence of any contact between Ms. Gamble and her niece, the Respondent’s daughter.
• Ms. Gamble was of the character to store valuable papers. She did not keep the Will in a safety deposit box but rather left it among her personal papers in her home along with detailed instructions to the Applicant. Leaving a will at home as opposed to a safety deposit box makes it easier for estate trustees to access. Still, this factor weighs against rebutting the presumption because she said in her instructions that the original Will was in the safety deposit box.
• There is no evidence as to Ms. Gamble’s understanding of the consequences of not having a will. It does appear from the evidence, however, that she was attentive to having a will and that since at least 2012, she intended to leave bequests to Shriners and the Windsor Cancer Centre and the residue to the Applicant, something that would not happen if her estate was distributed pursuant to an intestacy. There is no evidence, as the Respondent himself conceded, that she intended to leave her estate to him, as would occur under an intestacy.
• Ms. Gamble made several statements to the effect that she had a will. She prepared her own will, however, and may not have understood that photocopied pages attached to her original attestation did not constitute a valid will. I do not find that Ms. Gamble knew the formalities of will execution notwithstanding her statement in the August 13, 2024 notes not to remove the staple from the Will. As she herself states in those notes: “There is some legal reason, I’m not sure why”. Moreover, a Word version of the Will was found on her computer. Had she changed her Will shortly before her death, a different Word version would likely have been found.

[30] On the whole, the factors do not support a finding that Ms. Gamble intended to revoke her Will. There is simply no evidence that she intended to change her will to include the Respondent or his family as beneficiaries.

[31] I recognize that the Respondent is not asking me to make this determination today but rather to conclude that the RBC access records are relevant to this inquiry. However, the RBC records sought by the Respondent would only show whether Ms. Gamble had accessed her safety deposit box, not whether she had removed items. They would certainly not show that she had removed her Will. Putting the Respondent’s case at its highest, even if the records did show the removal of the Will, that fact on its own would not be sufficient to overcome the other evidence that rebuts the presumption of an intention to revoke her Will.

[32] Considering all of the evidence, I find that there is sufficient evidence to establish, on a balance of probabilities, the absence of an intention by Ms. Gamble to revoke the Will. If the Applicant has already met his burden to prove a lost will, the RBC access records are not relevant and need not be produced.

b. Is the Will a Valid and Fully Effective Will?

i. Legal Framework

[33] The 2021 amendments to the SLRA included a new provision, s. 21.1, that gives the court the ability to validate a will that was not executed in strict conformity with the SLRA.

[34] Section 21.1(1) states as follows:

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.

[35] In Marsden v. Hunt et al., 2024 ONSC 1711, para 6, Faieta J. set out the two-part test that governs the application of s. 21.1:

1. First, is the document authentic? In this respect, “absent any concerns about the validity of her signature, the document can be accepted as authentic, and even the complete absence of witnesses can be overlooked” […].
2. Second, does the document set out the “testamentary intentions” of the deceased? […] [F]or a document to set out the testamentary intentions of the deceased, the document must reflect a “fixed and final intention” as to the disposal of their property on death. […] [Citations omitted.]

[36] The Applicant must satisfy this test on a balance of probabilities: Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, para 6.

ii. Analysis

[37] In the case before me, there is an irregularity – the photocopied first two pages of the Will – that the Applicant seeks to cure pursuant to s. 21.1(1) of the SLRA.

[38] I find that the Applicant has met the two-part test set out in Marsden.

[39] First, there is unchallenged sworn evidence from one witness, Mark Renaud, who states that he witnessed Ms. Gamble sign the Will. There is no suggestion that the signature shown on the Will is not Ms. Gamble’s signature.

[40] Second, there is overwhelming evidence of Ms. Gamble’s fixed and final intention as to the disposal of her property on death at the time she executed the Will. Among other evidence, I find that:

1. The original signature page was attached to the Will.
2. The August 13, 2024 notes were not shredded.
3. Ms. Gamble typed her own Will, and the digital copy of the Will was found on her computer.
4. The residuary beneficiary was also designated under her life insurance policies and RRSP.
5. The Applicant and Ms. Gamble remained friends up to her death, and his name and phone number as an emergency contact were affixed to her fridge.
6. Her August 2024 notes contain several references to her disapproval of her brother.

[41] In the case before me, the photocopied pages contained both the deceased’s and the witnesses’ initials. This is not a situation in which uninitialed pages of a will were slipsheeted or in which there was evidence that the testator was uncertain as to how to dispose of his estate, as was the case in Hejno v. Hejno, 2025 ONCA 249.

[42] Section 21.1 is intended to be curative: Salmon v. Rombough, 2024 ONSC 1186, para 143. If the Will is not recognized, Ms. Gamble’s wishes and intentions will be frustrated. I choose to exercise the authority provided in s. 21.1 to conclude that the Will is authentic and reflects her testamentary intentions.

c. Comment on Impact of s. 21.1 on Lost Wills Jurisprudence

[43] The interplay between the rules governing lost wills and the new procedure under s. 21.1 of the amended SLRA has not yet been addressed by the courts. Where a copy of the will is before the court, does the s. 21.1 procedure govern? What is the relevance of the pre-amendment jurisprudence regarding lost wills?

[44] The four-part test to prove a lost will overlaps with, but is more extensive than, the two-part test that has developed under s. 21.1. Under the former, the focus of the inquiry is on the circumstantial evidence tending to show revocation of a will. Under the latter, there is no presumption that the deceased intended to revoke their will. The many factors established in Goold and other cases relevant to determining if the presumption has been rebutted may not all be necessary in a s. 21.1 analysis.

[45] Under both tests, the party seeking to prove the will bears the burden of proof on a balance of probabilities. Under both tests, the court must determine if the lost/improperly executed will reflects the testator’s intentions. In the end, perhaps the distinctions between the two are insignificant.

[46] Neither party addressed this question, and I applied both the lost wills analysis and the new s. 21.1 test in coming to my conclusion. It may be helpful in a future case involving a photocopy of a will for the parties to turn their minds to the applicability of pre-amendment caselaw in order to avoid the application of two distinct legal tests to determine essentially the same legal question: i.e., whether the photocopied will is valid and fully effective.

d. Should the Windsor Cancer Centre Foundation be Deemed a Beneficiary?

[47] Ms. Gamble designated Windsor Essex County Cancer Centre Foundation (Registration No. 890493562RR0001) the beneficiary of $100,000 in para. 2(d) of her Will. However, that registration number belongs to Windsor Cancer Centre Foundation.

[48] There is no entity called “Windsor Essex County Cancer Centre Foundation”.

[49] On the interpretation of a will in which a charity may have been named incorrectly, Donovan Waters et al., Waters’ Law of Trusts in Canada, 5th ed. (Toronto: Thomson Carswell, 2021), at p. 861, states as follows:

As a general practice the courts make every effort to discover which beneficiary was intended by the testator, and do not allow misdescription - either an imperfect or inaccurate description - to defeat the testator's intent. The same is true when the beneficiary is an institution, but in the case of charitable gifts the courts often seem to lean over backwards to avoid the finding that the intended institution cannot be discovered.

[50] I am satisfied that this is simply a case of misnomer. Ms. Gamble named the correct charitable institution registration number. Accordingly, the Windsor Cancer Centre Foundation is deemed to be the beneficiary identified at para. 2(d) of the Will.

Costs

[51] At the conclusion of the hearing, I asked counsel for their submissions on costs. Ms. Montello stated that the Applicant is not requesting costs. Mr. Bhatti for the Respondent requests substantial indemnity costs in the amount of $6100.

[52] As the successful party, the Applicant is presumptively entitled to costs but does not seek them.

[53] Mr. Bhatti submitted that his client is entitled to costs because the request for the access record was reasonable.

[54] At Ms. Bhatti’s request, Ms. Montello obtained confirmation from RBC that no original Will or more recent will was contained in the safety deposit box. The Respondent’s demand for the access record was, in essence, a fishing expedition. I have found that the requested document was not relevant.

[55] I agree that the Applicant was not required to accede to all the Respondent’s production demands. Estate Trustees must manage production requests while keeping in mind the costs and potential delays for production, the need to avoid duplication, and the need to prioritize resolution of the matter: Kacin v. Kacin, 2024 ONSC 3345, para 29.

[56] This is not one of those rare cases in which the unsuccessful party is entitled to costs. There was no misconduct on the part of the Applicant, miscarriage in the procedure, or oppressive and vexatious conduct of proceedings that would justify costs against the Applicant: 1318706 Ontario Ltd. v. Niagara (Regional Municipality), para 50.

[57] As a result, there shall be no order as to costs.

Orders

[58] This court orders that:

1. The Last Will and Testament of Lynn Gloria Gamble dated January 7, 2021 (the “Will”) is valid and fully effective as if it had been properly executed;
2. A Certificate of Appointment of Estate Trustee with a Will shall issue in relation to the Will to the Applicant, Robert Dunham, upon submission of the usual documentation, without the necessity of filing an Affidavit of Execution;
3. The beneficiary identified as the Windsor Essex County Cancer Centre Foundation shall be deemed to be the Windsor Cancer Centre Foundation.

Jasminka Kalajdzic

Released: June 10, 2025