Estate disputes are an unfortunate yet common reality for many. A will can be challenged on various grounds, such as claims that it does not comply with the legal formality requirements, or that the testator did not have the capacity at the time of the will’s execution. A family member who is not named as a beneficiary can ask the court to declare the will invalid.

This article reviews the formality requirements for wills in Ontario. It also looks at a recent decision of the Court of Appeal for Ontario, in which the validity of a man’s will signed without any witnesses being present was challenged. 

What are the grounds for challenging a will?

Wills are often challenged on the following grounds:

• lack of compliance with the formality requirements for the preparation of a will,
• the testator did not have testamentary capacity when making the will, that is, did not understand what they were doing, or have what the courts call a “sound disposing mind”, or
• someone exerted undue influence over the testator.

The person contesting the will may seek to rely on several grounds, hoping that the court will find the will invalid due to at least one of the grounds.

What are the formality requirements for a legal will?

Under the Ontario Succession Law Reform Act (the “Act”), several requirements must be satisfied for a will to be valid. First and foremost, the will must be in writing. 

Secondly, the testator must sign the will at the end of the document. Alternatively, another person can sign it in the testator’s presence by their direction. 

Thirdly, the testator needs to sign in the presence of at least two witnesses who are not beneficiaries under the will, each of whom also signs the will. Audio-visual communication technology is permitted to facilitate this in certain circumstances.

What is a “holograph will”?

Ontario legislation recognizes holographic wills as valid, despite the difference in formal requirements. Holographic wills are wills which are entirely handwritten by the testator. Section 6 of the Act states:

“A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.”

This provision means that a will can still be deemed valid when it is signed by the testator in the absence of witnesses, provided it is entirely handwritten. 

Testator who died by suicide and was found with a handwritten note

In McGrath v Joy, a man made a will and signed it in the presence of witnesses. In the will, he distributed his property between his wife, stepson, stepson’s son and a friend. 

The man died by suicide after spending the previous day “working on his boat, drinking alcohol, and smoking hash oil cigarettes.” The police discovered a signed two-page suicide note in his shorts pocket, in his handwriting. In the note, he claimed that his wife had driven him to this point.

For the purposes of the will dispute, the suicide note said that the previous will was void and that all of the man’s property was to go to his stepson and stepson’s son. He instructed his business partner to ensure his wife did not receive anything and did not attend his funeral.

Suicide note was a holograph will; issue was whether man had testamentary capacity

The man’s stepson applied to the Court to have the suicide note declared as his valid will. The man’s wife and friend, who were beneficiaries under the prior will, opposed the application. 

The parties agreed that the suicide note was a valid holographic will under section 6 of the Act, given that it was handwritten and signed by the man. However, the man’s wife and friend argued that he lacked capacity when writing the suicide note. In particular, they claimed that he was drunk and abusing substances and that the letter was just a “profanity laced diatribe” against the wife that even said the man was “beyond control.”

Testamentary capacity requires a sound disposing mind

The Court of Appeal explained the principles for determining testamentary capacity. To possess a sound disposing mind, the testator needs to:

• understand what a will is, along with its impact;
• recollect the extent of their property;
• know what they are giving away under the will;
• recall the people that might be expected to benefit under the will; and 
• understand the nature of the claims that could be made by the persons they are excluding.

Man had testamentary capacity; estate goes to his stepson and stepson’s son

The Court then considered each of these issues. The man understood the nature and effect of a will, having prepared them before and thinking the suicide note was a will, as it declared the prior will void and made a disposition of property. He also recollected the nature of his property and knew what he was giving, referring to his prior will and cabin. The man clearly recalled his wife in the suicide note. He did not refer to the friend, but the Court thought that he might have believed he had already fulfilled that bequest in light of an earlier gift that he made.

The Court said that it was an error to determine a lack of capacity based only on drug and alcohol use. It was necessary to apply the relevant legal principles, which pointed to a finding that the man had testamentary capacity when writing the suicide note. 

As a result, it was a valid will that he disposed of the property to his stepson and stepson’s son. 

Contact Campbell Litigation for Assistance with Inheritance Disputes 

Estate disputes often involve complex issues and are emotionally taxing. At Campbell Litigation, our estate litigation team can advise on and help manage various estate and inheritance disputes. We represent clients in a variety of litigation issues, including challenging wills, trusts or estates, applications to remove trustees, and claims by dependents where inadequate provision has been made for support. Our firm proudly assists clients throughout Waterloo, Kitchener and the surrounding areas. To arrange a free initial consultation with a member of our trusted team, please call us at 519-886-1204 or contact us online.