CITATION: Mio v. Bergvall et al, 2025 ONSC 3919
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF JANET MARIE NELSON
BETWEEN:
WILLIAM A. MIO, Estate Trustee for the Estate of Janet M. Nelson
Applicant
– and –
JERRY BERGVALL, JEAN THOMPSON, WILLIAM A. MIO, in his capacity as Trustee of the Janet M. Nelson Trust, RICH RUD and KIM RUD
Respondents
H. Gladstone, for the Applicant
No one appearing for the Respondents
HEARD: June 26, 2025, by ZOOM in Fort Frances, Ontario
Mr. Justice F. Bruce Fitzpatrick
Judgment on Application
1William Mio, Estate Trustee for the Estate of Janet M. Nelson (Janet) applies for an order validating the dispositive provisions of the Janet Nelson Trust dated May 19, 2023 as a testamentary document pursuant to the curative provisions of section 21.1 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26. (the Act).
Background
2Janet died on May 25, 2023. At the time of her death, Janet had a common-law spouse, the applicant, William Mio ("Bill"). Otherwise, she had no legal spouse, no living parents, no children and two living siblings, namely Jerry Bergvall and Jean Thomas. Janet and Bill lived in Minnesota, where they held the vast majority of their assets. Janet owned two assets in Ontario. One was a piece of property in Rainy Lake. The second asset is a bank account worth about $25,000.00. The Rainy Lake property is water access only and a realtor’s opinion was received in 2024 putting its value at $220,000.00.
3Janet was a person of substantial means. She had engaged in complex estate planning with the assistance of a Minnesota attorney. The estate plan included;
a. The Janet M. Nelson Trust dated June 4, 2021 (the "Original Trust");
b. Last Will and Testament of Janet Nelson dated June 4, 2021 ("Janet's Will"); and
c. The First Amendment and Restatement of Trust Agreement of Janet M. Nelson dated May 23, 2025 ("Janet's Trust").
4Janet's Will contains a so called “pour-over” provision as the central gifting provision of the residue of her Estate, namely under Article 2: Residue. Janet's Will states:
I give residue of my estate [ ... ] as follows:
2.1 To Janet M. Nelson Trust. to the Trustee of the Janet M. Nelson Trust under an agreement created by me on June 4, 2021, ("Janet M. Nelson Trust"), as amended and existing at my death, to be added to administered, and distributed as part of the assets of that trust.
2.2. If the Janet M. Nelson Trust is not in existence at my death, or if the gift to the Trustee is ineffective in whole or in part for any other reason, then and to the extent, I appoint William A. Mio as my Trustee, and I direct my trustee to administer and distribute any part (including all) of the gift not effectively distributed by the preceding Paragraph in accordance with the provision of the Janet M. Nelson trust as if the agreement establishing such trust (as it now exists) were set forth in full in this instrument.
5Janet’s will at Article 4 provides;
Trust Administration upon My Death
Upon my death, the Trustee shall make distributions from the trust assets, including all property that becomes distributable to the Trustee at my death, as follows: [ ... ]
4.5 Specific Gift of Cabin in Canada. The Trustee shall distribute to my friends, Rich Rud and Kim Rud, who survive me in equal shares. If neither Rich or Kim survive me, this gift shall lapse and my Cabin in Canada shall be distributed as part of the residue of this Trust.
6The application contains an affidavit from the Minnesota attorney who prepared Janet’s estate plan. The attorney deposes the “pour over” provisions are valid in the State of Minnesota.
The Law
7In Vilenski v. Weinrib-Wolfman [2022] O.J. No. 1721, J. Kimmel J. decided after a thorough analysis of case law from other provinces, that “pour over” clauses are invalid in Ontario. “Pour over” clauses that direct the residue of an estate to an amendable or revocable inter vivos trust are invalid. Vilenski, was not appealed nor subject to any subsequent judicial consideration.
8Section 21.1 of the Act provides;
(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.
The Position of the Applicant
9The applicant concedes that the “pour over” clause contained in Janet’s will cannot be enforced in Ontario. Practically, this means her assets in Ontario would be dealt with as a situation of intestacy. In that circumstance, the Canadian assets would go to Janet’s next of kin. Janet has two surviving siblings, the respondents, Jerry Bergvall (“Jerry”) and Jean Thomas (“Jean”). Jerry and Jean consent to the relief requested in this application. It is clear it was Janet’s intent that the Rainy River property go to her friends, the respondents Rich and Kim Rud (“the Ruds”). The Rud’s consent to the relief requested in the application.
10The applicant submits that section 21.1 of the Act gives the Court the discretion to make an order validating the bequest in the “pour over” clause of Janet’s will. The applicant argues the effect of section 21.1 of the Act is to give effect to testamentary intentions that would otherwise be defeated by deficiency in form.
11The applicant submits Janet’s clear intentions can be satisfied by granting the order requested.
Analysis
12Counsel for the applicant has fully and fairly placed the issue before the Court. Despite the excellent and focused advocacy of counsel, I am not prepared to exercise my discretion in favour of the applicant by granting the relief requested.
13In my view, there is a very material difference between curing a technical defect in a testamentary document as opposed to curing one that goes to the validity of a particular disposition or to an entire testamentary document. Curing defects in form is different than curing defects in substance.
14The powers granted by the Legislature to the Superior Court in s. 21.1 of the Act presuppose that the testamentary intention of the testator at first instance would result in a disposition that is valid in this Province. It makes sense not to have valid dispositions of property defeated by defects that are merely formalistic in nature. In my view, this is not what is occurring in this case.
15The provisions of Janet’s will with respect to her Ontario assets are invalid. While it may have been her wish to have the Ontario portion of her estate distributed as indicated in her will, the “pour over” provision has been held to be invalid in this jurisdiction. The problem is not one where the disposition is defeated by a mere technicality. It is not the case that Janet did not properly execute her will. The problem is much more significant. It is one created by operation of the common law.
16There is no issue in this matter that Janet’s will is authentic. There is no issue that the document sets out Janet’s testamentary intentions. But that does not answer the real issue raised in this case. The problem is not technical. In my view, it is an unfortunate problem that simply cannot be overlooked without upending one aspect of the common law regarding dispositions of property by will which has been held by a decision of this court to be unenforceable. I am persuaded by the reasoning of J. Kimmel J. in Vilenski. I see no reason to depart from it and it was not argued by the applicant that I should do so in this case. The doctrine of stare decisis requires me to follow Vilenski.
17If the Legislature intended to grant the courts such broad discretion as to make valid dispositions that are otherwise invalid, much more plain and direct language would have been required in the Act. Section 21.1(1) speaks of “writing not properly executed or made under the Act”. It is intended to permit the court, under certain circumstances to find that “a document or writing” (a would-be will) “is as valid and fully effective as the will of the deceased” (an actual will) being made in accordance with the Act. In my view, this section is meant to address problems of form but not substance. This is not the situation in the application before the Court. Janet’s will creates a problem of substance due to the operation of Ontario common law. It cannot be cured by the provisions of section 21.1(1).
18For these reasons the application is dismissed.
19The Court again thanks counsel for their professional and fair assistance to the Court in this matter.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: June 30, 2025
CITATION: Mio v. Bergvall et al, 2025 ONSC 3919
COURT FILE NO.: CV-25-0019-00
DATE: 2025-06-30
IN THE MATTER OF THE ETATE OF JANET MARIE NELSON
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WILLIAM A. MIO, Estate Trustee for the Estate of Janet M. Nelson
Applicant
– and –
JERRY BERGVALL, JEAN THOMPSON, WILLIAM A. MIO, in his capacity as Trustee of the Janet M. Nelson Trust, RICH RUD and KIM RUD
Respondents
JUDGMENT on application
Fitzpatrick J.
Released: June 30, 2025