Ontario Superior Court of Justice

Court File No.: CV-24-87210-ES
Date: 2025-06-16

Between:
Deanna McKinlay, in her proposed capacity as Estate Trustee of the Estate of Virginia Beecroft
Applicant

and

Daniel Currie, Our Daily Bread Ministries Canada, The Governing Council of the Salvation Army in Canada, The Good Shepherd, Interval House of Hamilton, Inasmuch House-Women in Crisis, and Native Women's Centre
Respondents

Appearances:

• S. Davis, for the Applicant
• P. Woloshyn, for the Respondent, The Governing Council of the Salvation Army in Canada
• A. Teimoortagh, for the Respondent, The Good Shepherd
• Daniel Currie, self-represented, for the Respondent, Daniel Currie

Heard: May 30, 2025

Reasons for Decision
M. Bordin

Overview

[1] In her factum, the applicant, Deanna McKinlay in her proposed capacity as Estate Trustee (“Deanna”), seeks direction from the court regarding the administration of the estate of the late Virginia Beecroft (the “Estate”). The position put forward by Deanna, in submissions, is that the court should declare that a document written primarily by Deanna and signed by Virginia Beecroft (the “deceased”) is the deceased’s testamentary instrument (the “Proffered Document”). The respondent Daniel Currie supported the relief sought. The other respondents who appeared did not oppose or consented to the relief sought.

[2] In the alternative, Deanna seeks a declaration that the deceased’s Last Will and Testament dated September 30, 2020 (the “2020 Will”) and First Codicil dated June 10, 2021 (the “Codicil”), is the testamentary document to be administered by the Estate.

[3] Deanna advances further alternative positions that the Proffered Document is a holograph will that revokes the 2020 Will, and that the portion of the Estate not dealt with by the Proffered Document should be distributed in accordance with the rules of intestacy set out in Part II of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”).

[4] Deanna has tendered two affidavits. The affidavit of the respondent, Daniel Currie (“Daniel”), attaches a “letter” outlining the reasons why he “was not estranged from his mother.” Daniel does not attest to the truth of the “letter” in his affidavit. The parties attending the motion were content with the court relying on the “letter” as though it was sworn evidence.

[5] Daniel’s affidavit also attaches a letter from Ms. Hesson of Shalom village. The letter is hearsay. I received no submissions on whether the letter is admissible for the truth of its contents. For the purposes of my reasons, I assume that its contents are true.

Background Facts

[6] The deceased died on November 21, 2023. She was survived by her three children: Daniel, Brenda, and Douglas. Deanna was her first cousin.

[7] The deceased had been estranged from Brenda and Douglas for 30 years.

[8] The deceased’s husband predeceased her in February 2023.

[9] According to their affidavits, Daniel lives in Burford and Deanna lives in Hamilton. In April 2023, the deceased was living at Shalom Village in Hamilton. Sometime in June 2023, the deceased moved to a retirement residence in Chatham, Ontario. She did not want anyone to know she was moving there.

[10] Additional facts are referenced in my analysis of the issues below.

The 2020 Will

[11] A lawyer prepared the 2020 Will. The same lawyer prepared the Codicil.

[12] The 2020 Will appoints the deceased’s husband as trustee and a friend of the deceased as alternate should her husband predecease her or be unwilling or unable to act. In the event the deceased’s husband predeceased her, the 2020 Will bequeaths the deceased’s property to the respondent charities as set out in clauses 3(a) and (b) of the 2020 Will.

[13] The 2020 Will states:

I have made no gift to my children, specifically my son, Douglas, and my daughter, Brenda, as I have been estranged from them for years and they have not come to visit me nor reflect any interest in me. As to my son Daniel, he has benefited from the sale of our home in Chatham and thereafter, and therefore, I have made no further gift to him. Further, in the last period of time, he too has become estranged by his conduct and actions. Each of my children are independent and not dependent on me in any manner.

[14] The Codicil replaces the friend with Deanna as alternate trustee but otherwise confirms the 2020 Will.

The Proffered Document

[15] At the top of the Proffered Document are eight lines of text handwritten by Deanna which state:

I, Deanna McKinlay, am printing this on behalf of my cousin, Virginia Beecroft, who is very weak and is having difficulty writing. Virginia is revoking her last will and making her last will, appointing Deanna McKinlay as trustee. She is leaving her estate to
Dan Currie 25% of all assets
The rest of the estate is to be distributed as mentioned previously in Section 3 of part b and a. [Strikeout in original]

Below this are three lines written by the deceased. The first two words are “Virginia Beecroft”. The rest is indecipherable. Following this there is a gap, and then, in Deanna’s handwriting, the word “Signature” and the date November 19, 2023, written twice, as well as the signatures of the deceased and Deanna.

The Issue

[16] In her factum, Deanna states that the “main issue for determination in this [a]pplication is whether the [Proffered Document] is a valid testamentary instrument. If so, is it a [h]olographic Will or a [s]econd [c]odicil to the [2020 Will].”

[17] A holograph must be written wholly by the testator’s own hand: see s. 6 of the SLRA. The key and dispositive words in the Proffered Document are written by Deanna, and as such I find it is not a holographic will. I do not consider this issue further.

Section 4(2) of the SLRA

[18] Section 4(2) sets out the requirements for a duly executed will:

Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

[19] There is no issue that the 2020 Will and Codicil were executed in accordance with s. 4(2) of the SLRA. However, the Proffered Document does not comply with s. 4(2).

Section 21.1(1) of the SLRA

[20] Deanna relies on s. 21.1(1) of the SLRA which provides:

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] As the section states, for the court to declare a document or writing to be effective as a will or effective at revoking, altering, or reviving a will, despite not being properly executed or made under the SLRA, the court must be satisfied that the document sets out the testamentary intentions of the deceased. As the cases interpreting s. 21.1(1) demonstrate, to meet this requirement, the court must be satisfied that the document recorded a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death.

[22] The standard of proof that applies to establish whether s. 21.01(1) is satisfied is the balance of probabilities: Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, para 5.

[23] Deanna references three cases in support of her position that the Proffered Document is a testamentary instrument: Cruz, Groskopf v. Rogers et al., 2023 ONSC 5312, and the unreported decision of Grattan v. Grattan, (February 1, 2023), 22-0054 (Ont. S.C.).

[24] In Cruz, the deceased had prepared his own will, which the court found expressed his testamentary intention in clear terms. However, it was not properly witnessed. Myers J. held that the document recorded “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”: para. 9.

[25] In Groskopf, the deceased completed a fill-in-the-blanks style document in her own handwriting. It was signed by the deceased but not dated. It was not witnessed. The alleged will was found in a lock box in the home where the deceased was living at the time of her death. There were other estate documents found with it. The document was validated by the court as the last will and testament of the deceased.

[26] In Grattan, the deceased was sent an electronic draft will by her lawyer. She sent the draft back electronically with alterations, spelling changes, and changes to her residence. No changes were made to the dispositive provisions of the draft will. The lawyer promised to make the necessary corrections and asked the deceased to make an appointment to sign the documents. The deceased died 15 days later before an appointment could be made. The court found that the draft will set out the fixed and final intentions of the deceased and that there was no evidence that she had changed her mind between when she provided her instructions and her death.

[27] The cases cited by Deanna turn on their facts. There are other cases considering s. 21.1(1) which are briefly summarized in Allison v. McBride, 2025 ONSC 2828, para 11. These cases tend to involve situations where the document proffered as a testamentary instrument was prepared entirely by the deceased, or by a lawyer and revised by the deceased, or was not properly executed – either because it was unsigned or not properly witnessed. The cases cited by Deanna are no different. This does not mean however, that the use of s. 21.1(1) is limited only to such situations.

Analysis

[28] I accept that the Proffered Document is authentic in the sense that it was written by Deanna and signed by the deceased. The issue is whether it sets out the testamentary intentions of the deceased. For the reasons I will explain, I am not satisfied that it records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.

[29] Daniel’s evidence is that he continued to visit with his mother and speak to her on the phone from late 2019 through to February 2023. This contradicts the clear statement in the 2020 Will that the deceased had been estranged from Daniel “in the last period of time.”

[30] Further, Daniel acknowledges that while the deceased executed powers of attorney on January 13, 2020, appointing Daniel as substitute attorney if her husband refused or was unable to act as attorney, the deceased told him in September 2020, that she was changing her power of attorney. Any updated powers of attorney have not been produced.

[31] By February 2023, the deceased made it known that she did not want visitors. There is no evidence that the deceased disclosed her whereabouts or her move to Daniel. It is reasonable to infer, which I do, that the deceased did not wish Daniel to visit.

[32] According to Deanna, at a visit in April 2023, the deceased “indicated” to her that she was “considering” leaving a portion of her estate to Daniel. Deanna further deposes that the deceased was “thinking about making changes to her Will”. At the time, Deanna did not have a copy of the 2020 Will. However, Deanna asked the deceased why she was no longer speaking to Daniel and during that visit suggested that the deceased consider leaving a portion of her estate to her children, to which the deceased responded that she would “consider including Daniel”. Deanna then told the deceased that she would have to contact her lawyer to change her will.

[33] Deanna also asked that the deceased provide her with a copy of her will. According to Deanna, the deceased agreed and telephoned the lawyer who had drafted the 2020 Will and Codicil to request that a copy be provided for Deanna to pick up. There is no evidence that the deceased asked her lawyer to change the 2020 Will when she spoke with the lawyer. There is no evidence of any draft changes to the 2020 Will nor that the deceased instructed her lawyer to change the 2020 Will.

[34] On November 9, 2023, the deceased collapsed and was admitted to hospital. On November 13, 2023, Deanna learned that the deceased was in the ICU in a Chatham hospital. Deanna spoke with the deceased on November 13, 2023, and asked if she could tell Daniel that the deceased was in hospital. The deceased said yes. It was not the deceased who initiated this conversation.

[35] Deanna informed Daniel of the deceased’s hospitalization and then called the hospital and spoke with a nurse who later asked the deceased if Daniel could visit. The nurse informed Deanna that Daniel could visit, and Deanna immediately let Daniel know. Daniel deposes that he visited the deceased daily from November 13, 2023, to November 20, 2023.

[36] On November 17, 2023, Deanna contacted the lawyer who drafted the 2020 Will to seek guidance on how the deceased might update the 2020 Will while in the hospital. There is no evidence that the deceased asked Deanna to do this. In her affidavit, Deanna simply states that since the deceased “had not mentioned anything to me about having changed her Will after moving to Chatham and before being hospitalized, I assumed that she had not made any changes to it.”

[37] It bears repeating that the evidence is that the deceased had not taken any steps to change the 2020 Will at this point despite seven months having passed since the issue was first raised by Deanna in April 2023.

[38] On November 18, 2023, Deanna visited the deceased in the hospital. Deanna, not the deceased, again raised the issue of whether the deceased had changed her will. Deanna asked the deceased whether she had decided to leave anything to Daniel in her will. According to Deanna the deceased confirmed that she had. Then, Deanna, not the deceased, asked how much the deceased intended to leave to Daniel. The deceased said she was unsure. Deanna then suggested that the deceased think about it overnight and let her know. Daniel and his fiancée arrived, and they all spent time together.

[39] On November 19, 2023, Deanna returned to the hospital. She brought a copy of the 2020 Will and the notes she made of the call with the deceased’s lawyer. Those notes were not produced. There is no evidence that the deceased asked Deanna to do this. There is no evidence that the 2020 Will was shown to or discussed with the deceased on that day.

[40] Daniel and his fiancée also visited that day. It was when they stepped out to get coffee that Deanna, not the deceased, suggested that the deceased write down the changes to her will. Deanna asked how much the deceased wanted to leave to Daniel; again, the deceased was not sure of a specific amount. Deanna suggested that the deceased choose a percentage and the deceased said 25 percent.

[41] Deanna provided the deceased with a clipboard, paper, and a pen to prepare a holograph will. There is no evidence that the deceased asked for this. Deanna propped up the deceased and held the clipboard for her. Despite Deanna’s efforts to prop up the deceased, she says that the deceased was unable to write more than a few words. The deceased died the following day.

[42] Deanna then wrote the words at the top of the Proffered Document and says she read them back to the deceased. There is no evidence that the deceased had trouble reading and could not read the document herself. Evidence of knowledge and approval of the contents of the Proffered Document is lacking. I have no evidence of what happened to the Proffered Document after it was drafted and signed. Was it left with the deceased so she could review it and consider it further? Was it taken away by Deanna? By Daniel? This raises issues, not the least of which that the deceased’s handwriting follows what Deanna had written and is indecipherable.

[43] I have no evidence of whether there were any other testamentary instruments or notes found among the deceased’s belongings when Deanna and Daniel worked together to put the deceased’s affairs in order and clear her belongings.

[44] Deanna does not explain why the deceased’s handwriting appears in the middle of the page of the Proffered Document, below Deanna’s writing, although Deanna’s evidence was that she stepped in to write for the deceased only after the deceased tried, and failed, to write legibly or coherently.

[45] There is no evidence explaining why the deceased, not Deanna, wanted to change the 2020 Will and leave 25 percent of the deceased’s property to Daniel. Nor is there evidence to explain why the deceased had a change of heart on November 19, 2023, given her clearly expressed reasons for excluding Daniel as a beneficiary when she executed the 2020 Will – he had already benefited from the sale of the deceased’s home in Chatham and thereafter and was not entitled to anything further. I note, again, that the deceased took no steps to change her 2020 Will and confirmed her testamentary intentions in the Codicil, executed in June 2021.

[46] It was Deanna who took all the steps that lead to the creation of the Proffered Document.

[47] Deanna deposes that “to the best of her knowledge and belief, she verily believes that [the deceased] had the requisite mental capacity at the time of signing … on November 19, 2023.” There is little evidence to support this bald assertion. The words written by the deceased on the Proffered Document suggest otherwise. No medical evidence or medical records were tendered.

[48] The Proffered Document does not specify what will is being revoked, or what document is being referred to when it states that the “rest of the estate is to be distributed as mentioned previously in Section 3 of part b and a”. This is odd since Deanna’s evidence is that she had a copy of the 2020 Will with her in the hospital room. The Proffered Document does not mention the Codicil.

[49] Given the reference to a “previously made” document, the court must consider the doctrine of incorporation by reference. It has three threshold requirements:

a. The document must be in existence at the time the will is made;
b. The document to be incorporated must be described in the will as being in existence at the time of making the will; and
c. The document to be incorporated must be sufficiently described in the will so that it is clear that the document submitted for admission to probate is the same as the document referred to in the will.

See Re: Lacroix Estate, 2021 ONSC 2919, para 12.

[50] It is far from clear on the evidence that requirement c. of the doctrine has been met.

Disposition

[51] For the reasons articulated, I am not satisfied that the Proffered Document records the deceased’s deliberate or fixed and final expression of intention as to the disposal of her property on death. I conclude, therefore, that the Proffered Document is not a valid testamentary instrument.

[52] The Estate of the late Virginia Beecroft shall be administered in accordance with the terms of the Last Will and Testament dated September 30, 2020, and the Codicil attached thereto.

[53] The alternative relief sought by the applicant that there should be a declaration that the Salvation Army office located at 80 Bay Street N., Hamilton, Ontario, Canada, L8R 3N3, is the intended beneficiary of the residuary bequest to “The Governing Council of The Salvation Army, in the City of Hamilton” under subsection 3(b)(b) of the Last Will and Testament dated September 30, 2020 should be granted. It was not opposed and was supported by the Salvation Army respondent.

[54] A Certificate of Appointment of Estate Trustee with a Will shall be issued to the applicant, in relation to the Last Will and Testament dated September 30, 2020, and the First Codicil thereto upon submission of the usual documentation.

[55] If the parties cannot resolve the costs of the application, the parties may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages, together with excerpts of any legal authorities and any relevant offers to settle. All submissions are to be filed with the court and uploaded to Case Centre. If no submissions or written consent to a reasonable extension are received by the court by June 30, 2023, the matter of costs will be deemed to have been settled.

M. Bordin
Released: June 16, 2025