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Recent Developments in Estate Litigation

In White v White, 2023 ONSC 7286 the court was asked to settle a unique legal development, specifically the interplay between section 9 (“s.9”) of the Estates Act and the newly enacted section 21.1 (“s.21.1”) of the Succession Law Reform Act (“SLRA”). This marks the first instance where the application of s.9 was considered in conjunction with s.21.1 of the SLRA, which introduces a novel dimension to the pursuit of testamentary intentions in estate matters.

Under s.9 of the Estates Act, the court is granted the authority to compel the production of “any paper or writing being or purporting to be testamentary.” Historically, this provision has been used primarily to locate a deceased person’s formal will.  Traditionally, documents not executed formally as a will had no legal effect as testamentary dispositions in Ontario. Thus, the broader inquiries allowed by s.9 were not typically used to locate or require production of documents other than a formal will. However, this landscape changed with the introduction of s.21.1 of the SLRA.

Section 21.1 of the SLRA allows the court to recognize as valid wills documents that were not properly executed as wills. This introduces a new dimension to the search for testamentary documents. White v White raises a fundamental question: Does the scope of s.9 change, and do individuals now have an entitlement to search for non-formalized testamentary documents when considering the rights granted by s.21.1 of the SLRA?

White v White involves the applicant’s late mother’s 2014 will and subsequent attempts to alter it. The applicant’s late mother (the “Deceased”) had prepared a will in 2014, leaving 10% of her assets to the applicant, and 90% to the applicant’s brother.  In August of 2022, the Deceased took steps with her lawyer to prepare a new will. An appointment was made to finalize the new will, but days before the meeting, the Deceased suffered a stroke, was hospitalized, and ultimately passed away without signing the will. The facts were exactly the type of matter that s.21.1. was meant to address and potentially validate the unsigned will. 

The applicant asked the court to use its power under s.9 to require the Deceased’s lawyer to provide the unsigned will, with the purpose of bringing an application under s.21.1 to have it validated. When the case initially came before the court, the judge expressed concerns about the possible breadth of the application and deferred the decision. The judge’s concerns focussed primarily on the potential for “fishing expeditions” if the scope of s.9 was expanded to allow potential beneficiaries seeking any document that may be validated under s.21.1. 

In response to the judge’s concerns, the applicant presented an additional affidavit providing a comprehensive overview of the family tree, specific legatees, and the deceased’s intentions. The affidavit also highlighted the existence of a hard copy of the draft will and detailed the proposed changes to the will.

The court ultimately decided to order the disclosure of the will file of the Deceased’s lawyer, given the consent of the interested parties and the applicant’s claim for recognition of a specific document under s.21.1. The decision emphasized the fact-specific nature of the ruling, addressing concerns about unintended consequences, “fishing expeditions” and potential abuses of the legal process.

This case sheds light on the evolving landscape of estate litigation, where the interaction between s.9 of the Estates Act and s.21.1 of the SLRA pose unique challenges and opportunities. As the legal community navigates uncharted territory, the decision serves as a starting point for future considerations on the scope and application of these statutory provisions in estate matters. 

If you have an estate dispute to settle, our team at Pavey Law can work with you to determine reasonable next steps and explore ways to advance your interests.  We routinely support clients with estate matters in the Cambridge, Kitchener, and Waterloo Regions. Contact our office today to set up a consultation. 

1 RSO 1990, c E.21