Court File and Parties

Court File No.: CV-22-00014241-00ES Date: 2025-09-12 Superior Court of Justice – Ontario

In the Matter of the Estate of Glenna Eleanor Simcoe, deceased

Re: Rosemarie Dokis, Applicant

And: Mary Esther Burgaretta, Janice Joyce Simcoe, June Anderson, Carole Susan Fraboni, Jerome Eric Simcoe, David Beers, Jennifer Faria, and Mary Elizabeth Anne Faria, Respondents

Before: Papageorgiou, J.

Counsel: Devan J. Munch, for the Applicant Jason Martin, for the Respondents – Jennifer Faria and Mary Elizabeth Anne Faria

Heard: July 18, 2025

Endorsement

Overview

[1] On November 6, 2023, Rosemarie Dokis ("Ms. Dokis"), obtained a Certificate of Appointment of Estate Trustee without a Will for the Estate of Glenna Eleanor Simcoe.

[2] Ms. Dokis subsequently discovered a Holograph Will which was prepared by the testator, dated July 11, 2000. The Holograph Will also contains various revisions initialed by the testator.

[3] Ms. Dokis brings a motion for directions with respect to the Estate.

[4] In the event the Holograph Will is valid, Ms. Dokis seeks to be appointed as Estate Trustee with a Will because the two persons named as Estate Trustees in the Holograph Will are deceased.

[5] In the event the Holograph Will is valid, the distribution of the Estate will change from an intestate distribution under the Succession Law Reform Act, R.S.O. 1990, c. S.26 ("SLRA"). There are also a number of ambiguities within the Holograph Will concerning the distributions.

[6] All beneficiaries, both on an intestacy and under the Holograph Will, have been served with the motion.

[7] None of these beneficiaries took the position that the Holograph Will was invalid.

Decision

[8] For the reasons that follow I declare that the Holograph Will is valid, that Ms. Dokis shall be appointed as Estate Trustee. I also make certain directions regarding the interpretation of the Holograph Will and distributions set out therein.

Issues

• Issue 1: Is the Holograph Will valid?
• Issue 2: Are the revisions to the Holograph Will valid?
• Issue 3: If the Holograph Will is valid, what directions should be made concerning Ms. Dokis' appointment as Estate Trustee?
• Issue 4: If valid, what directions should be made regarding distributions under the Holograph Will in respect of Leonard Simcoe (deceased), D'Arcy Beers (deceased), Gregory Sawyer (deceased), and Albert Rusling (deceased)?

Analysis

Issue 1: Is the Holograph Will valid?

[9] The relevant parts of the Holograph Will state as follows:

I Glenna Eleanor Simcoe

I want Martin Des Roches (416) 481-0591 and Lillian Lye of Hamilton (905) 527-6114 to act as my joint executors for which they are to receive $15,000 each

The condo, Suite 1420, which I own, is to be sold for good and fair value and that money is to be added to my estate. The same applies to my car.

The contents of my apartment are to be sold or given to members of my family who are listed as my beneficiaries.

I want my brother Leonard Simcoe to receive one-third of my estate.

I want the remaining two-thirds of my estate to be divided equally among:

-Mary Esther Bugaretta

-Janice Simcoe Rogowski

-Carle Fraboni

-Jerome Simcoe

-Rose Marie Dokis

-Gregory Sawyer

-David Beers

-D'Arcy (Steven) Beers

-{Jennifer Faria, Elizabeth Faria, and Albert Rusling.

Written and dated at Toronto, Sunday, July 11, 2000.

[10] I am satisfied the Holograph Will is valid for the following reasons.

[11] Pursuant to s. 6 of the SLRA, a testator may make a valid will wholly by his handwriting and signature without formality and without the presence, attestation, or signature of a witness.

[12] Rule 74.04 permits a person to seek the appointment as Estate Trustee by filing a number of documents. Where the will is a holograph will, the Rules require an "affidavit attesting that the handwriting and signature in the will or the codicil are those of the testator."

[13] In addition to the formal requirements, before a handwritten document prepared and signed by a testator will be treated as a valid holographic will, it must contain "a deliberate or fixed and final expression of intention as to the disposal of property upon death.": SLRA, s. 6.

[14] In the decision Niziol v. Allen, 2011 ONSC 7457, the applicant was successful in proving a handwritten document as a valid Holograph Will. After finding the document met the formal requirements, Justice Stinson considered whether the document contained a deliberate and final testamentary intention by looking at the language of Will. Justice Stinson found the introductory language of "I Glenda Nizial" was consistent with the way in which testators would identify themselves when making a will. The document went on to make numerous dispositive statements with reference to the testator assets: "leave my estate", "everything I own", "whatever I own" and "upon my death". The document further identified beneficiaries to whom the assets of the testator were to be distributed. Justice Stinson found that, read as a whole, the language contained in the document was concise, cogent and coherent evidence that the testator intended it to have testamentary intent. See also Laframboise v. Laframboise, 2011 ONSC 7673.

[15] Similar to the above cases, the Holograph Will sets out a deliberate fixed and final expression of intent. It begins with the words "I Glenna Eleanor Simcoe." It contains a provision for the appointment of Executors. It provides for the sale of her assets to be added to her residue and then provides for the distribution of her estate in unambiguous language.

[16] James Dunn ("Mr. Dunn"), the testator's financial advisor for many years has provided an affidavit of verification where he indicates that he was familiar with the testator's handwriting and signature having witnessed her sign documents in the past. He has also provided evidence of financial documentation where there are numerous examples of the testator's handwriting which aligns with the writing style depicted on the Holograph Will.

[17] Ms. Dokis, who is the testator's niece, also believes that this is the testator's handwriting and signature.

[18] This fulfills the criteria in r. 74.04.

[19] With the exception of June Anderson (who has not responded to this motion but who was served), all beneficiaries under both an intestacy and under the Holograph Will are in agreement that the Holograph Will is valid.

Issue 2: Are the revisions to the Holograph Will valid?

[20] The revisions to the Holograph Will are invalid, except for the obliteration of one beneficiary.

[21] The Testator made two revisions to the Holograph Will:

a) beside the bequest to Leanord Simcoe, the testator wrote "Leonard died Dec. 1 2003 His heirs are excluded from my will except for his four children named below"; and

b) beside the bequest to D'Arcy (Steven) Beers, the testator crossed out his name and wrote: "Darcy died March 9, 2003 His heirs are excluded from my will".

[22] She initialed but did not sign these changes.

[23] Both Mr. Dunn's and Ms. Dokis' evidence is that these revisions were in the testator's handwriting.

[24] Section 18(2) of the SLRA provides as follows:

18 (1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Part governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent.

(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made, (a) in the margin or in some other part of the will opposite or near to the alteration; or (b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will. R.S.O. 1990, c. S.26, s. 18.

[25] In the decision Luty v. Magill, Greer J. found two deletions that were dated, initialed, and which obliterated the testator's earlier handwriting formed a holograph codicil. The bequests and /or legacies were revoked for purposes of probate of the will.

[26] In this case, while the two revisions to the Holograph Will are undated, there is extrinsic evidence to establish that said revisions were made after the Will was executed. Both revisions note the date of death of the respective beneficiaries which post-dates the Will.

[27] However, only the writing with respect to D'Arcy (Steven) Beers obliterates the bequest to D'Arcy (Steven) Beers. Therefore, in accordance with Luty v. Magill and 18(1), this change is valid but only to the extent that it invalidates the gift to D'Arcy (Steven) Beers. The other wording regarding the exclusion of his heirs does not form part of the Holograph Will or form a Holograph Codicil.

[28] The writing with respect to Leonard Simcoe does not obliterate any gift in accordance with s. 18(1). It is an invalid alteration and does not form a Holograph Codicil because pursuant to s. 18(2) there would have had to be a signature in the margin or some other place near to the alteration. This was not done, only initials.

Issue 3: If the Holograph Will is valid, what directions should be made concerning Ms. Dokis' appointment as Estate Trustee?

[29] Ms. Dokis was issued a Certificate of Appointment of Estate Trustee without a Will on November 6, 2023. This Certificate is no longer valid because of the Holograph Will.

[30] The individuals appointed under the Holograph Will as Estate Trustees have deceased.

[31] Ms. Dokis wants to be appointed Estate Trustee.

[32] There is no formal process provided in the Rules of Civil Procedure to address the situation of locating a will following issuance of a Certificate of Appointment of Estate Trustee without a Will.

[33] Ms. Dokis proposes the following:

a) an order that Certificate of Appointment of Estate Trustee without a will shall be revoked pursuant to r. 75.04 of the Rules as it is no longer effective.

b) an order that Ms. Dokis is appointed succeeding Estate Trustee with a will and without the necessity of posting a bond under r. 74.06 of the Rules.

c) an order that the Estates Registrar shall issue a Certificate of Appointment of Succeeding Estate Trustee with a Will to Ms. Dokis upon filing a copy of this Order, an Application for a Certificate of Appointment of Succeeding Estate Trustee with a Will (Form 74), the original Holograph Will and a draft Certificate of Appointment of Succeeding Estate Trustee with a Will.

[34] There are no other beneficiaries who would like to assume this role and they all consent. The beneficiaries also agree to her appointment without a bond. Ms. Dokis lives in Ontario.

[35] I grant these orders.

Issue 4: If Valid, what directions should be made regarding distributions under the Holograph Will?

[36] When interpreting a will, the court's task is to determine the testator's actual or subjective intention as to how she intended to dispose of her property: Trezzi v. Trezzi, 2019 ONCA 978, at para 13; Devonport v. Devonport, 2024 ONSC 6768 at para 17.

[37] The starting point is the language in the will itself. As stated in leading decision Ross v. Canada Trust Company, 2021 ONCA 161, the Court will also consider the surrounding facts and circumstances known to the testator at the time the will was made - an overarching framework known as the "armchair rule". The court will assume the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members. See also Dice v. Dice Estate, 2012 ONCA 468.

[38] Four named beneficiaries listed in the Holograph Will have pre-deceased the testator, Leonard Simcoe, D'Arcy Beers, Gregory Sawyer, and Albert Rusling. The Holograph Will does not indicate what is to happen if these beneficiaries pre-deceased the testator.

[39] The general rule is that when a residual gift lapses (or fails), it passes on an intestacy.

[40] Section 31 of the SLRA, referred to as the "anti-lapse provision" provides that where a gift is made to certain family members and they pass away before the testator, then the gift passes to their issue unless a contrary intention is expressed:

Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible,

(a) if that person had died immediately after the death of the testator;

(b) if that person had died intestate;

(c) if that person had died without debts; and

(d) if section 45 had not been passed.

[41] This applies to one of the deceased beneficiaries. There are other deceased beneficiaries who do not fall within s. 31.

[42] Ms. Dokis argues that the court may consider the Holograph Will and the surrounding circumstances to determine whether the Testator expressed an intention that the gifts to these beneficiaries should not lapse and pass on an intestacy, but that they should pass to these beneficiaries' heirs on a per stirpes basis or be added to the residue and shared among the existing beneficiaries.

D'Arcy Beers

[43] D'Arcy Beers ("D'Arcy") is the testator's nephew. As noted, the Holograph Will obliterated this gift.

[44] Therefore, the portion that he would have received is simply part of the residue that will be divided among the testator's beneficiaries.

Leonard Simcoe

[45] Leonard Simcoe ("Leonard") is the testator's brother. Leonard died on December 1, 2003. Leonard was survived by four children: Mary Esther Burgaretta, Janice Simcoe Rogowski, Carole Fraboni, and Jerome Simcoe. His children are already beneficiaries entitled to share in 1/3 of the Estate.

[46] As noted, the alteration with respect to Leonard does not alter the Holograph Will or result in a Holograph Codicil.

[47] Therefore, because Leonard was the testator's brother, absent a contrary intention, the gift to him would not lapse but pass to his heirs pursuant to s. 31 of the SLRA.

[48] In my view, the testator did not express any contrary intention. She did not obliterate her brother's name as she did with D'Arcy. She specifically intended to benefit her brother's children because she listed them as beneficiaries entitled to share in the 2/3 of the residue. Leonard is also the only beneficiary listed who was a sibling.

[49] Therefore, Leonard's share passes to his children per stirpes in accordance with s. 31 of the SLRA.

Gregory Sawyer

[50] Gregory Sawyer ("Gregory") is the testator's nephew. Gregory pre-deceased the testator but there are no markings on the Holograph Will that obliterate his gift as there are with Mr. Beers. It is unknown whether she knew that Mr. Sawyer pre-deceased her, but given that Mr. Sawyer was her nephew, it is reasonable to assume that she would have known.

[51] Ms. Dokis references Spencer v. Spencer, where the Court considered a situation where a beneficiary, who was a child of the testator, had pre-deceased a testator.

[52] This was a case where s. 31 of the SLRA clearly applied such that the testator's residual gift to the child of the testator, would pass to his heirs.

[53] The court's consideration of the testator's intention in that case was to consider whether there was a contrary intention that the gift would not proceed on a per stirpes basis as directed by s. 31 but rather be added to the capital and divided among the existing beneficiaries.

[54] This case does not stand for the proposition that where s. 31 does not apply, the court may nevertheless consider whether the testator has expressed the intention, considering all the surrounding circumstances, that the gift should not lapse but rather proceed on either a per stirpes basis or be added to the capital and divided among existing beneficiaries.

[55] There are, however, cases where courts have sought to construe a will to determine whether the testator's intention was, nevertheless, that a gift to a beneficiary who pre-deceased would not lapse, even in cases where s. 31 does not apply.

[56] In Maiden Estate v. McGuire, Belobaba J. looked into the surrounding circumstances to save a gift that would otherwise lapse and where s. 31 did not apply because the gift was to the testator's aunt.

[57] Justice Belobaba took into account the golden rule of construction that presumes that a testator did not intend to die intestate. If a will is capable of two constructions, the one that disposes of the entire estate or another which results in a partial intestacy, the court will refer the former: Kapousouzian Estate v. Spiak, 2014 ONSC 2355 at para 12.

[58] He concluded that this was a principled approach in line with the basic rule for construction of wills which was to determine the true intention of the testator as per the relevant authorities: at paras 29 to 33. In that case, he found a contrary intention with respect to the testator's cousins who she considered to be her only remaining family and that her other cousins were virtual strangers. Therefore, she could not have intended to benefit them which would occur if the lapsed gift passed on an intestacy. He concluded that the gift did not lapse but that the testator's intention was that it would be shared among the surviving residuary beneficiaries.

[59] Justice Molloy took the same approach in Campbell v. Shamata, [2002] O.J. No. 99 at para 7.

[60] This approach was also followed in Frolich Estate v. Wedekind et al, 2012 ONSC 3775 where the court considered whether a lapsed gift to the testator's deceased's husband's nephew should go by way of intestacy. The court considered the fact that the testator had a special connection and relationship with her named residuary beneficiaries and it could be inferred that she wished only to benefit those persons named. There was no evidence that she knew of or contemplated leaving any portion of her estate to traceable next of kin. The court concluded that it was not her intention to benefit anyone other than those specifically named and that her intention was that if a gift lapsed it would be shared among her existing residuary beneficiaries with whom she shared a special relationship:

[22] It is therefore open to the court to find that a reasonable and common-sense interpretation of the Testator's Last Will and Testament would provide that the lapsed gift should be distributed among the named surviving residuary beneficiaries. In arriving at this conclusion, the court is mindful of the "golden rule", applicable to the interpretation of Last Wills and Testaments, which states that where there are two interpretations which can be applied to a Will, it is the interpretation which favours testacy, rather than intestacy, that should be applied.

[23] In short, I have found a contrary intention in the Will, with the assistance of evidence of her friends Franz Surkau and Maria Surkau that the Testator considered Gabriele Wedekind, Renate Dreger, Anita Schroeder and Erna Arndt to be her only remaining family, and those persons found by way of genealogical research were in fact virtual strangers to her. To that end, the lapsed residuary gift should not be distributed on intestacy but only among those named residuary beneficiaries she was close to.

[61] Given the golden rule, in my view, notwithstanding that s. 31 of the SLRA does not apply, the court may still consider the surrounding circumstances in determining whether the testator's intention was that a lapsed gift would pass on an intestacy or be distributed per capita to existing beneficiaries.

[62] This approach is also not inconsistent with s. 31 of the SLRA. What s. 31 does is mandate that where the gift is to a child, grandchild, brother, or sister of the testator who dies before the testator it shall not lapse but shall pass to their heirs unless a contrary intention appears.

[63] This does not exclude the court's ability to construe the testator's intention with respect to other types of beneficiaries who do not fall into those categories. To put it another way, s. 31 does not oust the court's ability to construe the will and seek to ascertain the testator's intention with respect to a lapsed gift to individuals not included in s. 31, if that is possible taking into account the surrounding circumstances. The aforementioned case law is consistent with this.

[64] In this case, the testator demonstrated a reasonable understanding of drafting a testamentary instrument, including establishing executors, payment, Powers of Attorney, transferring property to the residue and providing instructions on liquidation and transfers.

[65] In that regard, the testator was very clear to select certain family members who she wanted to benefit including the children of her brother Leonard, but not the issue of other listed beneficiaries. She specifically excluded some beneficiaries who would take on an intestacy. Therefore, she would not have intended that the gifts she set out would lapse and that they should proceed on an intestacy because this would mean that family members that she specifically excluded would benefit.

[66] Therefore, this gift should be added to the residue and distributed per capita. I discern no intention on the part of the testator that the bequest to Mr. Sawyer be distributed to his issue.

Albert Rusling

[67] Albert Rusling ("Albert") pre-deceased the testator. He was the testator's brother-in-law, having been married to the testator's sister Mary. Therefore, the anti-lapse provision set out in s. 31 would not apply.

[68] I apply the same reasoning as to Albert as is set out with respect to Gregory. That is, the gift would lapse unless a contrary intention can be shown, again taking into account the surrounding circumstances and the golden rule that it is unlikely a testator intended a partial intestacy and that if there are two possible constructions, the one that does not result in an intestacy should be preferred.

[69] For the same reason set out with respect to Gregory, I conclude that the testator did not intend that if he pre-deceased her, the gift would lapse and be distributed on an intestacy. Again, this would result in benefiting family members that she specifically excluded in her Holograph Will.

[70] For the same reason as set out with respect to Gregory, I also conclude that she intended that there should be a per capita distribution of Albert's share to the existing beneficiaries.

Jennifer Faria and Mary Elizabeth Anne Faria

[71] Jennifer Faria and Mary Elizabeth Anne Faria are the granddaughters of the testator's sister Alice, deceased. Albert was their great uncle. Therefore, these individuals share the commonality that they are the heirs of her deceased sisters.

[72] These beneficiaries were all grouped together with Albert with a dash and a bracket. This is different than the other beneficiaries who are listed separately and not grouped together, and it must mean something. They are also grouped together on the same line at the end, following the introductory words where the Testator said, "I want the remaining two-thirds of my estate to be divided equally among."

[73] In my view, they were together in this way to take a single per capita share of the Estate together because of the way the gift is expressed.

Conclusion

[74] Leonard Simcoe's 1/3 share of the testator's estate shall pass to Mary Esther Burgaretta, Janice Simcoe Rogowski, Carole Fraboni and Jerome Simcoe per stirpes.

[75] Jennifer Faria and Mary Elizabeth Anne Faria shall receive one share of the remaining 2/3 of the testator's estate together.

[76] Gregory Sawyer, Albert Rusling's share shall be added to the residue and be divided among existing beneficiaries on a per capita basis. As D'Arcy Beers' share has been obliterated, any share he would have received is simply part of the residue to be divided among the beneficiaries.

[77] Because D'Arcy Beers' gift was obliterated and because Gregory Sawyer and Albert Rusling's share is to be added to the capital, it means that the remaining 2/3 shall be divided among the following per capita:

• Mary Esther Burgaretta
• Janice Simcoe Rogowski
• Carle Fraboni
• Jerome Simcoe
• Rosemarie Dokis
• David Beers
• Jennifer Faria and Mary Elizabeth Anne Faria together receiving one share.

Costs

[78] Ms. Dokis requests her full indemnity costs in this amount of $21,544.14.

[79] I award this amount.

[80] In McDougald Estate v. Gooderham (2005), Gillese J.A. referred to the importance of various public policy considerations when determining costs in estate matters:

[I]t is important that courts give effect to valid wills that reflect the intention of competent testators. Where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator, it seems appropriate that the testator, through his or her estate, bear the costs of their resolution. If there are reasonable grounds upon which to question the execution of the will or the testator's capacity in making the will, it is again in the public interest that such questions be resolved without cost to those questioning the will's validity.

[81] This motion resulted because of ambiguities caused by the testator. The matter was considerably complex.

[82] I also award the Faria Respondents their costs on a full indemnity basis in the amount of $4,838.05. Again, participation in this matter resulted from ambiguities caused by the testator.

Papageorgiou J.

Released: September 12, 2025