Court File and Parties

Court File No.: 2024-441E (Kingston) Date: 2025-12-24 Superior Court of Justice - Ontario

Re: Estate of Roberta Anne Pregent (also known as Roberta Anne Middleton)

Before: Mr. Justice Graeme Mew

Solicitors for the Applicant: Cunningham, Swan, Carty, Little & Bonham LLP (John A. Black)

Heard: 17 December 2025, at Kingston (in writing)

Endorsement

[1] An application by Andrea Pregent for a certificate of appointment as estate trustee with a will in respect of the estate of her mother, Roberta Anne Pregent (also known as Roberta Anne Middleton), was referred to me, pursuant to Rule 74.14 (4) of the Rules of Civil Procedure, to consider whether the application raises an issue that requires determination by a judge.

[2] Roberta Anne Pregent died on 8 February 2024 in Kingston, Ontario. She executed a will on 12 April 1973 in Pointe Claire, Quebec. The will recites that at the time she resided in Pierrefonds, Quebec.

[3] Attached to the original will was a handwritten "amendment" to the will "to reflect the present situation". It is dated 10 February 1998 and appropriate confirmation has been provided that the handwriting is Ms. Pregent's. The place where the codicil was made is not stated, but it can be safely assumed that it was made in Ontario (see below).

[4] The estate consists entirely of personal property.

[5] I asked the solicitor for the applicant to assist the court by confirming the court's jurisdiction to consider the amendment of a Quebec will by an Ontario codicil. Surprisingly, no case on point was found. However, I was referred to the following sections of the Succession Law Reform Act, R.S.O. 1990, c. S.26 ("SLRA"):

36 (1) The manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in land, are governed by the internal law of the place where the land is situated.

(2) Subject to other provisions of this Part, the manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in movables, are governed by the internal law of the place where the testator was domiciled at the time of his or her death.

38 A change of domicile of the testator occurring after a will is made does not render it invalid as regards the manner and formalities of its making or alter its construction.

39 Nothing in sections 34 to 42 precludes resort to the law of the place where the testator was domiciled at the time of making a will in aid of its construction as regards an interest in land or an interest in movables.

[6] The concept of domicile, for the purposes of the SLRA was explained by Sedgwick J. in McCallum v Ryan Estate, [2002] O.T.C. 273, 114 A.C.W.S. (3d) 50, 45 E.T.R. (2d) 113 (Ont. S.C.J.), at para. 23:

The concept of domicile coincides with the concept of a "permanent home". The domicile of origin is received by operation of law at birth. A domicile of choice may be acquired if the person actually moves to another jurisdiction intending to remain there indefinitely. Acquisition of a domicile of choice requires both an actual move and the requisite intent to remain.

[7] Ms. Pregent and her late husband, Andre Alphonse Pregent had lived in Ontario for an extended time period exceeding 35 years prior to their respective deaths in 2024 and 2022. Prior to retirement they operated cottage rentals in the Gananoque - Parkway area, during that time they had owned houses in the Parkway and Kingston area which they resided. During the last 6 years of her life Ms. Pregent resided at the Arbour Heights care facility in Kingston.

[8] It is clear from the information provided to me that Ms. Pregent was, in fact, domiciled in Ontario when she died and had been for some 35 or more years.

[9] There is nothing on the face of the original Quebec will to suggest that it was not made in conformity with the law of that Province. Having regard to s. 36(2), the formalities also appear to conform with Ontario law. I find that it is a valid will.

[10] The handwritten codicil is presumed to have been made in Ontario, and meets the requirements of a holograph will under Ontario law.

[11] In Grillo Estate v. Grillo, 2015 ONSC 1352, Newbould J. found that s. 36(2) conferred jurisdiction for the court to deal with the validity of an alleged holograph will of an Ontario domiciled deceased which had been made in Italy. The Italy will purported to supersede an Ontario will which the deceased had made in 1994.

[12] I approach the jurisdiction of this court to recognise and give effect to the Quebec will of the deceased, as revised by the subsequent Ontario handwritten codicil, in a similar manner to the court in Grillo Estate.

[13] Accordingly, having found that the will and the holograph codicil are both valid under the law of the deceased's domicile, namely Ontario, the application is granted and a Certificate of Appointment of Estate Trustee shall issue.

Mew J.

Date: 24 December 2025