Toronto Estate Litigation Lawyer

Category: WILLS

  • SURPRISE! Discovering Your Deceased Spouse Had Another Family or Unknown Children: How It Affects the Estate and Will

    SURPRISE! Discovering Your Deceased Spouse Had Another Family or Unknown Children: How It Affects the Estate and Will

    Finding out that your deceased spouse had another relationship, or even children you never knew about, is one of the most painful revelations imaginable. Beyond the emotional betrayal, this discovery creates serious legal and financial consequences for the estate.

    When There Is No Will: Intestacy and Hidden Families

    If your spouse dies without a will, Ontario’s Succession Law Reform Act (SLRA) governs who inherits. The law sets out a clear order of priority:

    • The married spouse receives a preferential share (currently $350,000).
    • The remainder of the estate is divided between the spouse and the deceased’s children.
    • If there is no spouse, the estate passes to the children; if no children, then to parents, siblings, or next of kin.

    However, if the deceased had children from another relationship, even ones you didn’t know existed, they are legally entitled to share equally with other biological or adopted children. That means your spouse’s secret child from a previous relationship could legally inherit part of the estate, reducing what you and your known children receive.

    When There Is a Will: Unequal Treatment and Dependant’s Relief

    Even if your spouse left a will, new or unknown dependants may still have legal claims. If a will excludes a child or common-law partner who was financially dependent on the deceased, Ontario law allows them to bring a Dependant’s Support Application under Part V of the SLRA.

    Courts can order that:

    • A child not named in the will receives support from the estate, even if born outside marriage.
    • A common-law spouse or partner receives adequate maintenance.
    • An estate be frozen or redistributed until all dependants are accounted for.

    Case Study: Estate of Thiodore Moiseas, Lessons from a Disputed Family Tree

    The 2021 Ontario case Stoyan v. Johnson, 2021 ONSC 7483 (CanLII), shows how courts treat uncertain or disputed family connections. In the Estate of Thiodore (Ted) Moiseas, the deceased’s spouse and son had predeceased him, leaving no clear heirs. Competing relatives in Canada and Macedonia claimed to be the closest next of kin, and one sought a Benjamin Order (a court declaration that untraceable heirs be presumed dead so the estate can be distributed).

    The court refused the request. The applicant’s genealogical evidence was inconsistent, incomplete, and based on family lore. Key documents such as birth, marriage, and death certificates were missing, and the supposed kinship link was unproven. The judge found that without solid genealogical proof, no distribution could occur. The court ordered the prior trustee’s estate to pass accounts and pay the funds into court until rightful heirs were identified, with the Office of the Children’s Lawyer representing unknown beneficiaries.

    Takeaway: Even if you believe you are the rightful heir, family stories are not evidence. The court requires verified documentation and professional genealogical proof before declaring others predeceased or distributing an estate.

    Hidden or Unknown Children: Proving or Defending a Claim

    If a person claiming to be a child of the deceased comes forward after death, the estate trustee (and any existing heirs) must verify the claim. This often involves:

    • DNA testing or genetic evidence
    • Birth certificates or official records establishing parentage
    • Affidavit evidence showing the deceased acknowledged or supported the child
    • Financial records demonstrating dependency

    Conversely, if you are a surviving spouse who learns of an unknown child, you may wish to:

    • Request a stay of distribution until the child’s claim is proven
    • Seek court directions under Rule 75.06 or s. 29 of the Estates Act
    • Appoint a neutral estate trustee to ensure fairness among potential heirs.

    Protecting Your Rights as a Surviving Spouse

    If your spouse’s infidelity or hidden family surfaces only after death:

    • You remain entitled to your spousal share under the SLRA or to elect for equalization under the Family Law Act.
    • You can demand full financial disclosure and accounting of the estate before any distribution.
    • If necessary, you can apply to the Superior Court of Justice to restrain distribution or compel a passing of accounts.

    How Derfel Estate Law Can Help

    Navigating these issues requires both compassion and precision. At Derfel Estate Law, we:

    • Investigate hidden heirs and disputed paternity claims
    • Represent surviving spouses, children, and dependants in Ontario estate litigation
    • Prepare and defend Dependant’s Support Applications
    • Pursue or defend Benjamin Orders when heirs cannot be found
    • Guide executors through complex cross-border heirship investigations.

    Key Takeaway

    When a hidden family or unknown child emerges, Ontario estate law does not turn a blind eye; it demands proof, transparency, and fairness. Courts will not distribute an estate until every potential heir has been accounted for. If you’ve discovered that your spouse had another family, an unknown child, or dependants you never knew existed, or if you believe you’ve been unfairly excluded from an inheritance, you need experienced guidance.

    Frequently Asked Questions (FAQs)

     

    1. Can unknown or secret children inherit in Ontario?

    Yes. Under Ontario’s Succession Law Reform Act, biological and legally adopted children have equal inheritance rights, even if the surviving family did not know of their existence.

    1. What if the deceased had a common-law partner and a secret spouse?

    Only legally married spouses automatically inherit under Ontario intestacy law. Common-law partners may still claim support under the SLRA if they were financially dependent on the deceased.

    1. Can DNA testing be ordered after death to prove a child’s claim?

    Yes. Courts can order posthumous DNA testing or permit comparison of genetic material to establish parentage, particularly when estate assets are in dispute.

    1. What happens if I discover my spouse’s other family after probate is granted?

    You can apply to the court to suspend or vary the Certificate of Appointment, seek an accounting, and, if needed, bring a dependant’s relief or will challenge application.

    1. What is a Benjamin Order?

    A Benjamin Order is a court declaration that allows an estate to be distributed when certain heirs cannot be located or proven to exist. Courts only grant it after exhaustive searches and credible genealogical evidence.

    1. How can I protect my rights if another family makes a claim?

    Contact an experienced estate litigation lawyer immediately. They can secure the estate assets, request a passing of accounts, and ensure your interests are protected while the claims are verified.

    1. Does Ontario recognize children from relationships outside Canada?

    Yes, if legitimate documentation or proof of parentage can be provided. International claims require certified translations and often professional genealogical support.

    1. Can a will be changed after death to include a forgotten dependant?

    A will itself cannot be altered, but the court can order support or redistribution from the estate to provide for excluded dependants under the SLRA.

    1. How long do I have to make a claim against an estate?

    Generally, dependant’s support claims must be brought within six months of probate being granted, but courts can extend this period in exceptional cases.

    1. What should executors do if they suspect unknown heirs exist?

    Executors must take reasonable steps to locate and notify all potential beneficiaries. Advertising in relevant regions and hiring a professional genealogist are often necessary steps.

     

    Contact Derfel Estate Law

    At Derfel Estate Law, our lawyers, including David Derfel and Charlie Fuhr are experienced in estate disputes. We understand the emotional and financial strain these cases cause and are committed to finding cost-effective, compassionate solutions that protect your rights.

    Contact us today to schedule a confidential consultation.

  • Is it Good Enough? Substantial Compliance for Wills in Ontario

    Is it Good Enough? Substantial Compliance for Wills in Ontario

    On January 1, 2022, Ontario made a major change to how wills are treated under the Succession Law Reform Act (SLRA). The changes to the SLRA allowed Ontario to move away from strict compliance for wills and to a more flexible approach known as substantial compliance. Up until that point, if a will did not adhere to the strict rules of compliance, the court could declare the will invalid. This rigid approach to validating wills, often led to disappointed beneficiaries and costly litigation. This change to the law is intended to help ensure that a person’s true intentions are respected, even if their will does not strictly meet every formal requirement. At Derfel Estates Law, we recognize how important this shift is for families navigating estate matters in Ontario.

    What Is Substantial Compliance?

    Thanks to this amendment, the court can now declare that a will, or a document that appears to be a will to be valid even if it does not meet all the technical formalities. Although strict compliance may not be required, there still is criterial that needs to be met. To be upheld, the court must be satisfied that:

    1. The document is authentic, and
    2. It reflects the testator’s fixed and final testamentary intentions.

    This means that mistakes such as a missing witness signature or a failure to properly follow formalities may no longer automatically invalidate a will.

    Why the Change Matters

    The adoption of substantial compliance addresses many long-standing challenges in estate law. Rather than focusing on technical compliance, the court can now respect the testamentary wishes of a deceased. In other words, the court can now focus on what the deceased truly intended. The change also prevents unintended intestacy. Before the amendment, if a will was declared invalid for technical reasons, the result would then be an intestacy or probating a previous will. Most importantly, the change improves access to justice. Not everyone has access to or can afford formal estate planning. The result of the change is a more equitable approach to how estates are handled regardless of the means or abilities of the deceased.

    When Could a Court Qualify a Will Under Substantial Compliance?

    1. Unsigned or improperly witnessed wills, provided the testator’s intent is otherwise clear
    2. Handwritten notes or codicils, provided they show fixed, final instructions
    3. Wills with defective witnessing, such as where witnesses were not present together
    4. Draft wills that are close to completion, provided there is strong evidence the testator approved the final version

    However, not every document will pass. Drafts, notes, or emails without clear evidence of intent are usually not enough.

    Why a Properly Drafted Will Still Matters

    Substantial compliance is a last measure. It is not a substitute for a properly executed will. Relying on the courts to fix mistakes is expensive and risky and could lead to one or more of the following:

    1. Expensive litigation
    2. Delays distribution of the proceeds of the estate
    3. Family conflict and emotional strain
    4. Uncertainty because the courts may still refuse to validate a document

    The best way to protect your heirs is to ensure your will is properly drafted and executed with professional legal guidance. This prevents costly, stressful disputes and ensures your wishes are carried out smoothly.

    Frequently Asked Questions

    1. What is “substantial compliance” in Ontario wills law?: It allows courts to validate a will even if formal execution requirements were not followed, as long as the document reflects the deceased’s true intentions.
    2. When did substantial compliance become law?: It came into effect on January 1, 2022.
    3. What types of mistakes can be cured?: Missing witness signatures, improperly witnessed wills, or handwritten codicils may be validated if they reflect testamentary intent.
    4. Can electronic or video wills be validated?: No. Substantial compliance applies only to written documents.
    5. Does this mean I don’t need a lawyer for my will?: No. A professionally drafted will remains the best protection. Substantial compliance is a last chance remedy.
    6. What happens if a will isn’t validated?: The estate may be intestate or previous could be upheld intestacy, likely not reflecting the deceased’s wishes.

    This blog is provided for general informational purposes only and does not constitute legal advice. Every estate and every will are unique, and no two situations are exactly alike. If you have questions about how substantial compliance may apply to your circumstances, contact Derfel Estates Law for advice tailored to your situation.

  • It’s a Matter of Trust: The Implications of Using Multiple Wills 

    It’s a Matter of Trust: The Implications of Using Multiple Wills 

    The use of primary and secondary wills is an estate planning strategy often used to allow assets to quickly pass to family members while the remainder of an estate is settled.

    Multiple Wills: What are Primary and Secondary Wills?

    Primary wills often contain assets that need to be dealt with through the process of probate. Although the process is commonly referred to as “probate”, the correct term now is obtaining a Certificate of Appointment (a “Certificate”). Assets that typically require a Certificate include real estate not held jointly, bank accounts without beneficiaries, publicly traded stocks and personal property without a designated beneficiary. The cumulative value of these assets is subject to an Estate Administration Tax (the “Tax”). The Tax is 1.5% of an estate’s value over $50,000.00. Estates with a total value of less than $50,000.00 are not subject to the Tax. This process can take months or in extraordinary cases years.

    What can an estate planner do to help reduce administration delays and avoid the Tax? This can be done through the use of a secondary will. A secondary will typically includes assets that do not require a Certificate in order to be distributed amongst beneficiaries. Assets that do not require a Certificate can be distributed quickly and are not subject to the Tax. Assets that do not require a Certificate and would be included in a secondary will include private company shares, artwork, jewelry and other personal items. 

    Primary and secondary wills must be carefully drafted to ensure they do not contradict or revoke each other. Using multiple wills requires expert legal drafting to avoid conflicts. Also, be aware that some financial institutions may still require probate for certain accounts, even if listed in a secondary will. 

    How Have the Courts Dealt with Multiple Wills

    In Milne Estate (Re), 2019 ONSC 579 (CanLII) the Ontario Divisional Court addressed the use of primary and secondary wills. In Milne, the dispute originated with a married couple who died on the same day in October 2017. Each spouse left primary and secondary wills. The wills named their daughter, accountant, and lawyer as the executors. 

    Their respective primary and secondary wills were essentially the same. The primary wills were designed to deal with the distribution of all property except, “any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof.” The secondary wills covered items explicitly excluded from the primary wills as well as “any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof.” 

    The wills were submitted to the court for a Certificate. The judge hearing the application for the Certificate took issue with the executors being able to determine what property would be covered by each will (primary vs secondary). The judge hearing the application, felt that the discretion afforded to the executors created too much ambiguity. But for a few exceptions, the secondary wills did not include specific assets. In Milne, the judge hearing the application wrote, “A will is a form of trust. In order to be valid, a will must create a valid trust and must satisfy the formal requirements of the Succession Law Reform Act (“SLRA”). He further set out that a valid trust, and therefore a will, must demonstrate “certainty of intent to create the trust, certainty as to the subject-matter or property committed to the trust, and certainty as to the objects of the trust or the purposes” (i.e., the “three certainties”). 

    The application judge also wrote, 

    The Secondary Will of each testator vests in the executors all property of the testator and therefore satisfies the requirement of certainty of subject-matter. No property of the testator of any kind is excluded from the trust created by the Secondary Will even though it provides that it does not revoke the primary will. The Primary Will, by contrast, effectively vests in the executors the entire discretion to determine retroactively whether any assets were vested under the will at death based upon the executors’ view as to whether probate is necessary or desirable. 

    As a result, the judge found the secondary wills to be valid, but the primary wills to be invalid. 

    The decision of the application judge was appealed to the Divisional Court. The Divisional Court was tasked with determining whether the application judge erred when he held that a will is a trust. The court also had to determine whether the application judge was correct in holding that the “three certainties” are what should be used to determine the validity of a will. 

    Common law in Ontario has long held that multiple wills are valid, explaining that they are often used to allow the estate to pay less tax. The court wrote, 

    Because a testator often executes their Last Will and Testament several years in advance of death, it is often not practical to provide a definitive list of assets which will require or do not require a Certificate of Appointment to be transferred or realized at the time the Primary and Secondary Wills are executed. To overcome this practical problem, estate planning lawyers often provide estate trustees with the power to determine whether a particular asset requires a Certificate of Appointment upon administering the will. These clauses are often referred to as allocation clauses. The use of allocation clauses is a common estate planning technique. 

    The court added that just because the executors in this case had the discretion to allocate assets under each will, it did not follow that they could exercise that discretion in an arbitrary fashion. The court did not agree with the application judge’s statement that a will is a trust and is therefore subject to the three uncertainties. However, even if a will is a trust, the primary will should have been determined as valid. The court’s decision stated, 

    The property in the Primary Wills can be clearly identified because there is an objective basis to ascertain it; namely whether a grant of authority by a court of competent jurisdiction is required for transfer or realization of the property. As a result, the Executors can allocate all the deceased person’s property between the Primary and Secondary Wills on an objective basis. 

    As a result, the primary and secondary wills were both held as valid. 

    Re Milne was referred to in Ontario Superior Court decision Gordon v. Gordon et al., 2022 ONSC 550 (CanLII). Referring to Re Milne, at paragraph 42 the court writes, 

    The use of multiple wills is recognized by the courts in Ontario as a valid method to reduce the tax payable pursuant to the Estates Administration Tax Act, 1998, S.O. 1998, c. 34 (“EATA”): Re Milne Estate, 2019 ONSC 579, 431 D.L.R. (4th) 375, at para. 21. Testators often execute their testamentary document(s) years in advance of their death. As a result, it is not practical for a testator to set out a definitive list of the assets which fall within the portion of the estate to be probated and those which do not: Milne, at para. 22. For that reason, an allocation clause is frequently used and gives the estate trustee(s) the power to determine which assets require a certificate of appointment upon administering a will: Milne, at para. 22. 

    The Takeaway

    In Re Milne, initially, at the application stage, the court held that granting executors discretion (what assets are subject to the primary will versus the secondary will) created a trust-like arrangement. This casted doubt on the wills’ validity. On appeal, however, the Divisional Court overturned this decision, clarifying that a basket clause does not establish a trust but represents a valid exercise of an executor’s authority

    The Divisional Court reaffirmed that both primary and secondary wills are testamentary documents. These documents allow executors to allocate assets without violating trust principles. By distinguishing executorial discretion from the creation of a trust, the ruling reinforced the legitimacy of dual-will structures for probate planning. 

    By clarifying the distinction between executorial discretion and trust creation, the ruling affirmed the validity of dual-will structures in probate planning. 

    If you are involved in an estate dispute, require estate planning or need to draft a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation. 

  • My Dad Named Me as Executor of His Estate – What Do I Do If I Can’t Find His Will?

    My Dad Named Me as Executor of His Estate – What Do I Do If I Can’t Find His Will?

    A Will is an important legal document; it ensures that your estate is protected, your beneficiaries are provided for, and your final wishes are respected. It also allows you to engage in estate planning to minimize probate fees and delays. Not having a Will results in your estate being distributed under the legislative regime in the Succession Law Reform Act (SLRA) and may increase the expenses involved in settling your affairs. What happens when you know that there was a Will for the deceased, but it cannot be located? What can you do if you or your loved one’s Will is lost or destroyed?

    (1) Conduct a Thorough Search for the Will

    As noted in a previous blog, the first thing to do is conduct a thorough search for the Will. You should look through the testator’s personal papers and files, safety deposit boxes, contact the testator’s lawyer, and advertise in the Ontario Bar Association for other lawyers who might have information. If you are unsuccessful, then you may be able to apply to the court to “prove” the validity and contents of the lost Will, as set out below. 

    (2) Court Application under Rule 75.02

    Those with a financial interest in an estate can bring an application before the court to prove contents or validity of a lost or unintentionally destroyed Will. The process is set out in Rule 75.02 of the Ontario Rules of Civil Procedure:

    75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application,

    (a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or

    (b) in the manner provided by the court in an order giving directions made under rule 75.06.

    Under this application, you must serve a notice of application on anyone with an interest in the outcome of the proceeding, including beneficiaries under the lost Will and beneficiaries if the lost Will is not proven, either under a former Will or intestacy. If you can provide a photocopy of the Will and if all parties who have a financial interest in the estate agree that the provided proof is valid, then the court can declare that the lost Will is valid.[1]

    However, if all interested parties do not agree that the lost Will is valid, then courts can turn to the common law test.

    (3) Common Law Test

    Sorkos v Cowderoy sets out the test for determining whether a contested lost Will can be proven. Under this test, the applicant advocating for the validity of the lost Will must show:

    1. due execution of the Will;
    2. evidence which traces possession of the Will to the testator’s date of death, and after, if the Will was lost after death;
    3. a rebuttal of the presumption that the testator destroyed the Will with the intention to revoke it; and
    4. proof of the contents of the lost Will.[2]

    Applicants tend to have the most difficulty in proving the third element. Section 15(d) of the SLRA states that a Will can be revoked if the testator burns, tears, or otherwise destroys the Will or directs another person to do so with the intention of revoking it.

    When a Will is missing, you cannot prove that the testator did not destroy it; as such, you must prove, on a balance of probabilities, that the testator did not have the intention to revoke it. To do so, you must overcome the presumption that, when the Will can be traced to the testator’s possession and cannot be found after their death, the testator destroyed the Will with the intention of revoking it.[3] Several factors are considered by the courts in deciding whether the presumption has been rebutted:

    • whether the terms of the Will are reasonable;
    • the testator’s relationship with the beneficiary;
    • whether the testator’s personal effects were destroyed before the search for the Will began;
    • whether the testator was careful and organized in taking care of their personal effects;
    • whether there were any dispositions of property during the testator’s lifetime which contradicted the terms of the Will;
    • statements made by the testator which confirm or contradict the terms in the Will;
    • evidence that the testator understood the consequences of not having a Will and having their estate being distributed on intestacy; and
    • whether the testator made statements which indicated that they had a Will.[4]

    For instance, if there was evidence that the Will was important to the testator, that the testator intended to benefit their beneficiaries under the Will, and that their personal effects were burned after their death, then the presumption would be rebutted.[5] In contrast, if there was evidence that the testator was highly organized, careful with his belongings, and had complained about how he was treated by the primary beneficiary, then the presumption would stand.[6]

    Beyond rebutting the presumption that the testator intended to revoke their Will, you also must prove due execution of the Will and its contents. As with the court application under Rule 75.02, a photocopy of the original Will is often sufficient to prove its contents. It is also important to have witnesses who are not beneficiaries under the Will that can attest to the due execution and the contents of the Will. An ideal witness would be the lawyer who drafted the lost Will.

    Derfel Estate Law in Toronto Helps Executors Navigate Probate and Estate Administration

    Executors have substantial obligations and responsibilities; this process is made difficult from the outset if the deceased’s Will cannot be located, which can also increase the risk of litigation. At Derfel Estate Law, our estate litigation lawyers assist executors with each step of the estate administration process. Call us at 416-847-3850 or reach out to us online to learn how we can help you minimize the cost and conflict involved in administrating your loved one’s estate.

    This blog was co-authored by Kelli Preston and law student, Leslie Haddock.

    [1] For example, see Vilenski v Weinrib-Wolfman, 2022 ONSC 2116 at paras 5-6.

    [2] Sorkos v Cowderoy, 2006 CanLII 31722 (ON CA) at para 8.

    [3] Lefebvre v Major, 1930 CanLII 4 (SCC), [1930] SCR 252 at 257.

    [4] Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 at para 19.

    [5] Lefebvre, supra note 3.

    [6] Thierman Estate v Thurman, 2013 BCSC 503.

  • Court of Appeal Overturns Decision of Will Interpretation Using Contract Law Principles

    Court of Appeal Overturns Decision of Will Interpretation Using Contract Law Principles

    Wills are not often thought of as contracts, but they are often viewed as one. While there is no question that having a properly drafted will is one way to lessen the possibility of estate litigation, if contention does arise, courts will interpret the language used in the will to assist in determining the intention of the testator.

    The recent decision of VanSickle Estate v. VanSickle from the Ontario Court of Appeal illustrates how the courts apply principles of contract law when determining the intention of a testator. In this case, the Testator’s will was contested based on one small phrase which carried significant meaning.

    Siblings contest farming business being given to just one of them

    Prior to the decision in Vansickle Estate, the matter of Fletcher and Vansickle v. Vansickle, was brought before the Superior Court of Justice when the estate trustees sought direction on how to interpret a clause which allowed one of the Testator’s children, (referred to as “H.V.”) to purchase the farm from the estate. The Testator and her late husband had operated the farm for years, but it was never their main source of income. However, from approximately 1993 until the time of the trial, H.V. rented the farm parcel from his mother, following the father’s death, and subcontracted the farm related work to third parties, who paid rent to him for their use of the farm and then sold their own crops. H.V.’s siblings argued that the option to purchase the farm had lapsed given this shift.

    The Court in Fletcher and Vansickle found that the clause in question was ineffective, one reason being that at the time the Testator’s will was drafted, family members were working on the farm. The Court found that the Testator intended the clause to refer to an active farming business involving the cultivation of crops and/or raising of livestock. Therefore, the Court determined that the Testator did not intend to give H.V. the opportunity to be a landlord of the property, which was valued at approximately $85,000. Commentary from the Court stated that “business” was to be construed as to:

    “Mean the bare rental of farmland would be inconsistent with the qualifying phrase ‘carried on by me.’ Renting land, with no accompanying obligations such as for maintenance or repair, and no benefits beyond fixed rent, such as to share in profits, does not, in my view, require ‘carrying on’, and I find that the Testator did not intend the simple rental of land to come within the ambit of the phrase ‘farming business carried on by me.’”

    Decision appealed to Court of Appeal

    H.V. was not satisfied with the decision and appealed to the Court of Appeal. The Court began its analysis by indicating that the standard of review of a lower court’s will interpretation is performed using the same principles as are in contract law. This means that the will is interpreted in light of all the circumstances when determining the Testator’s subjective intention.

    The Court of Appeal stated that the trial judge made an extricable error of law in failing to defer to the Succession Law Reform Act which states:

    “Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to…the property of the testator.”

    While the application judge had found that the Testator did not intended for H.V. to become a landlord, the Court of Appeal suggested that instead of considering the Testator’s intent at the time the will was drafted, it should instead be determined in a review of the will as if it had been drafted in present day.

    Will interpretation guided by contract law principles

    The Court of Appeal stated that despite the farm being rented at the time of her death, this still constituted a farming business. After all, the Testator earned rental income which was reported in her income tax returns, where she also indicated that the farm would continue to be used as a farm the next year. Based on these factors, it was held that there was sufficient evidence to establish that the Testator was indeed carrying on a farm business at the time of the death.

    The Court then turned its eye to determining whether there was any verbiage contained within the will to indicate that the Testator instead intended for a farm purchase to only take place if it was going to be used as a farm with H.V. performing the farming duties. The application judge had placed heavy emphasis on the phrase “the farming business carried on by me” as written in the will, but the Court of Appeal did not deem this sufficient to lead to a finding which would prevent H.V. from purchasing the farm. Based on a lack of ambiguous language, or any indication that the Testator had meant something different than the plain language, there was nothing to suggest that H.V. should not have the opportunity to purchase the farm.

    Derfel Estate Law Provides Trusted Will Interpretation & Estate Administration Advice

    Estate litigation can involve complex issues and heightened emotions. Derfel Estate Law is a Toronto-based boutique estate litigation law firm serving clients throughout Ontario. Our experienced estate litigation lawyers provide support and guidance on all aspects of estate disputes and estate administration and probate matters. Our lawyers understand the difficulties parties might come up against in an estate matter, particularly in a will challenge. To find out how we can help, call our office us at 416-847-3580 or contact us online to schedule a consultation.

  • The Importance of Clarity in Creating a New Will

    The Importance of Clarity in Creating a New Will

    Creating a Will is one of the most critical steps to take when preparing for what happens to your estate. Preparing a valid Will is the best way to ensure that your assets will be distributed amongst your family, loved ones, friends, or charities as you see fit. Without a Will, if you die, your estate will be distributed according to the Succession Law Reform Act, which may not reflect your actual intentions.

    The recent decision of Re: Pearce Estate from the Ontario Superior Court of Justice shows that it’s essential to be very precise when creating or replacing a Will. A failure to do so can leave a lot of ambiguity in place, making it difficult for the courts to decipher the testator’s intentions.

    Applicant’s status as trustee uncertain under Will

    The applicant believed he had the right to be the executor of the deceased’s estate, valued at approximately $1.8 million. He submitted a document to the Court titled “Outline of the Will of [the Deceased]”. He sought to have it probated as her last Will and testament.

    The purported Will was not written in a legal style. Rather than having entire paragraphs, it was written in point form. However, it did contain some of the essential elements of a Will, particularly as it was signed by the deceased and two witnesses. One of the witnesses signed affidavits stating they saw it signed and did serve as a witness.

    The Will named the applicant as “trustee”. However, as the deceased had also established a trust, it was unclear whether the applicant was meant to be trustee of the trust or the estate. The estate’s solicitor told the court that he believed the deceased had intended to name the applicant as the estate’s trustee (or the executor). The solicitor noted that the deceased was unfamiliar with legal language and may not have been familiar with the role of trustees in various capacities or that there could be two trustees associated with the estate.

    Legal requirements when updating or replacing an existing Will

    The requirements for a valid Will in Ontario are set out under the Succession Law Reform Act. The Act states a Will must be in writing and signed by the testator (or someone in their presence and at their direction). Additionally, two witnesses must sign stating that the testator signed the Will. There are some limited exceptions to these rules, such as holographic Wills.

    If a testator is updating or replacing their existing Will, there are strict requirements under the Succession Law Reform Act to be followed. One of these is that the Will must contain language declaring an intent to revoke previous Wills.

    In Re: Pearce Estate, the deceased did not include any language stating that her previous Will was to be revoked. Neither the witness who signed the new Will nor the solicitor for the estate was able to offer any evidence of the deceased’s intentions. While the solicitor told the Court he believed the deceased intended the applicant to be named executor of the estate, he could not share any information on what led to this belief.

    Document determined to be an outline, not a Will

    The Court determined that, on the face of things, the document seemed to be an outline for preparing a new Will. The Court recognized that the deceased might not have had time to consult her lawyer or have a formal Will drawn up. Perhaps she had intended to convert the outline into a Will, which could be why she signed the document. However, the Court noted these scenarios were hypothetical as none of the witnesses could offer any evidence of the deceased’s intentions.

    Additionally, the document contained no language stating that the outline is intended to form a Will. The Court stated:

    “Nor is there any evidence of the content of those wills and how they might differ from the outline. There is ambiguity as to whether the preparation of a new will and the revocation of the previous will was a future intention or whether the testator intended this document to carry those intentions into effect.”

    The Court stated that the estate’s value requires additional evidence for an outline to be accepted as a Will intended to replace existing Wills. Rather than dismissing the matter altogether, the Court adjourned the hearing. The parties were requested to return with additional witnesses and any previous Wills, so the Court could examine them and compare them to the outline.

    Contact Derfel Estate Law in Toronto for Skilled Representation in Will Disputes

    Derfel Estate Law is a boutique estate litigation law firm located in Toronto and serving clients throughout Ontario. Our experienced and professional estate litigation lawyers focus on all aspects of estate disputes, including Will challenges and issues involving executors and trustees. We represent all parties involved in estate litigation matters, including beneficiaries, guardians, executors, and trustees. To schedule a confidential consultation, contact us online or call 416-847-3580.

  • Handwritten “Agreement to Transfer Property” Is Not a Valid Will

    Handwritten “Agreement to Transfer Property” Is Not a Valid Will


    The Court noted that the applicant would be the appropriate person to apply to be the trustee of the deceased’s estate. However, given that the document was not found to be a valid holographic Will in Ontario and the applicant had not proven that he made an adequate search for another Will, the Court adjourned the application. The adjournment was intended to provide the applicant with an opportunity to see whether another Will could be found or to confirm that a Will was not found despite a careful search.

    Contact Derfel Estate Law for Experienced Representation in Estate Litigation

    The McKenzie case demonstrates the importance of speaking to a lawyer when preparing your Will. While it may be tempting to save costs by creating a Will without the assistance of a professional, it can result in serious consequences (and costs) for your beneficiaries down the line.

    At Derfel Estate Law, our experienced team of estate lawyers provides skilled advocacy for clients involved in a variety of estate and trust disputes, including Will challenges and issues related to executors or trustees. We are conveniently located in Toronto and proudly serve clients throughout the Greater Toronto Area and Ontario. To schedule a confidential consultation, contact us online or by phone at 416-847-3580.

  • Close Friendships Are Family Ties in Will Interpretation

    Close Friendships Are Family Ties in Will Interpretation

    Family comes in all shapes and sizes. While most consider “family” restricted to biological or marital ties, friendships can become as close as a family bond. When drafting their Will, some people may choose to include their chosen family. This spring, the Ontario Court of Appeal corrected a lower court’s failure to acknowledge how close chosen family ties can be.

    Deceased Left Her Home to Her Long-time Friend in Her Will

    The case in question, Barsoski Estate v. Wesley, focused on the proper interpretation of the appellant’s late friend’s Will. The appellant, Robert, was a close long-term friend of the deceased, Diane. Robert received many benefits in Diane’s Will, including a $250,000 gift of personal property (a “bequest”) and a $500,000 fund for the home’s maintenance. She also instructed her estate trustee to hold her home and its contents for Robert during his lifetime “or for such shorter period as [he] desires.”

    Under the terms of the Will, if Robert were no longer living in the house, the fund would cover his living expenses, nursing or retirement home care, or funeral expenses. The home’s contents would also be sold, with proceeds going to St. Stephen’s, a charity that was also a beneficiary under the Will.

    After Diane’s passing, an investigation funded by St. Stephen’s showed that Robert’s acquaintance was living in the home while he worked full-time in Toronto and then later in Sault Ste. Marie. Despite this, Robert maintained that Diane’s home was his primary residence and that he spent weekends there once or twice a month. The estate trustee brought an application to understand the Will’s conditions further.

    Principles of Will Interpretation

    Every Will challenge will be subjected to interpretation by a judge. Judges must follow certain fundamental principles when undergoing this analysis:

    1. A Will must be interpreted to give effect to the intention of the testator. This is the most important principle.
    2. The court must read the entire Will as a whole. The words used in the Will should be considered in light of the surrounding circumstances (also known as the “armchair rule”).
    3. The court must assume that the testator intended the words in the Will to have their ordinary meaning.
    4. The court may canvas extrinsic evidence to ascertain the testator’s intention.

    While past decisions by other judges may be useful, courts cannot rely on case law alone. The most important part of Will interpretation is the testator’s intention and the factors determining those intentions.

    Trial Judge Ordered the Home to Be Sold

    At trial, the judge decided that Robert was given a licence, not a life interest, in the house. According to the trial judge, her conclusion that the gift was a licence rather than a life interest was supported by the $500,000 fund. The fund was dedicated not only to the home’s maintenance but also to Robert’s expenses outside the home should Robert choose to stop living in the house.

    The licence, the trial judge held, would expire when he was “no longer living in the house.” However, because the use of that phrase was unclear, the application judge decided that the gift to Robert had failed. Accordingly, the estate’s trustee was ordered to sell the house and pay the sale proceeds to St. Stephen’s.

    Court of Appeal Found Trial Judge Erred in Interpretation of Will

    The Ontario Court of Appeal disagreed with the trial judge’s decision. The Court noted that the judge had ignored the fact that the legal title to the home still belonged to the trustees. Since the trustees still possessed legal title, Diane was not trying to create a life estate.

    The Court also took issue with the trial judge’s understanding of the $500,000 fund. The Will considered the likelihood that Robert would not be able to earn enough income to maintain the home post-retirement and would need financial assistance. So, the fund’s purpose was actually for the upkeep of the home as long as Robert lived in it.

    The Traditional Family is Not the Only Family Form

    The Court was also critical of the trial judge’s failure to distinguish this case as one involving a similar interest granted to a spouse or common-law partner, rather than a friend. Her analysis was limited to a traditional view and disregarded the fact that Robert and Diane considered each other family. The Court of Appeal acknowledged, citing the Supreme Court of Canada:

    “[t]he traditional family is not the only family form, and non-traditional family forms may equally advance true family values… [F]amily relationships can exist when there is neither marriage nor a parent-child ancestral relationship. Unmarried couples of the opposite sex or same sex may be regarded as members of the same legal family for social or legal purposes.”

    With Robert clearly being part of Diane’s chosen family, there was no reason not to give effect to her wishes. This decision aligns with other findings that have similarly treated a friendship as family for the purposes of a Will (including life interests to friends).

    It is Still Crucial to Ensure Certainty in Drafting Wills

    Despite the Court of Appeal’s disagreement with some of the trial judge’s findings, it found she was correct in determining that the condition expressed in the Will was “far too indefinite and uncertain to enable the Court to say what it was that the testator meant should be the event on which the estate was to determine.” The term “no longer living” was indeed uncertain. The Court held that it was not possible to define what was meant by “live” in the house when Diane ought to have known that Robert could not move into her home immediately after her death.

    The appeal was ultimately allowed in part and concluded that Robert had indeed been granted a life interest in the house. However, the disputed condition was void for uncertainty, and the gift was allowed to survive without the limiting terms.

    Derfel Estate Law Provides Trusted Will Interpretation & Estate Administration Advice

    Derfel Estate Law is a boutique estate litigation law firm located in Toronto and serving clients throughout Ontario. Our professional estate litigation lawyers focus on all aspects of estate disputes, as well as estate administration and probate matters. We act for any party involved in estate litigation, including beneficiaries, guardians, executors, and estate trustees. To schedule a consultation, please contact us at 416-847-3580 or reach out online.

  • Estate Law Terminology

    Estate Law Terminology

    Estate planning can be a difficult task, but it’s even more difficult when you don’t fully understand the terms used in this area of law and how they relate to you.

    In this blog post, we’ll discuss some of the key terms that will be helpful to understand if you’re planning a will or if you’re an executor who is just beginning to administer an estate.

    Estate Law Terms to Be Aware Of

    Abatement. This term refers to the order that debts must be paid when parts of the estate must be sold to pay those debts. Testamentary gifts are reduced if the estate no longer has enough assets to fulfill all of those gifts. An estate may not be able to pay its gifts due to debts that it owed or if there was a judgement against the deceased, to name a few examples.

    Ademption. This term refers to the situation where a gift left to someone in a will is no longer available when the testator passes away. This also applies where the gift has changed form from when the testator gifted it. For instance, if someone sells property that has been gifted, or it has otherwise been destroyed.

    Assets. Assets of an estate is property that the deceased owned at the time of death. This includes, but is not limited to, bank accounts, real estate, artwork, and businesses.

    Beneficiary. A beneficiary is the person who inherits certain assets upon the testator’s death. Beneficiaries are owed certain things from the executor or trustee of the estate.

    Bequests. This term refers to the act of giving certain assets to individuals or organizations. These assets could include stocks, jewelry, or cash. They can be given to family, friends, charities, or other institutions.

    Codicil. A codicil allows the testator to make minor changes to their living will. This ensures that the changes are legally recognized.

    Contingent beneficiary. A contingent beneficiary is a person named in the alternative to receive benefits in a will or trust. This usually happens on the occurrence of a certain condition precedent that is expressed (or implied) in the will.

    Estate planning. This term refers to the process of arranging the transfer of assets to people as delegated in a will. It involves a long list of tasks and may require assistance from professionals, such as estate lawyers and accountants.

    Executor. An executor is the person who has been appointed by the testator to administer their estate. This means they are the ones to initiate many of the processes required to carry out the testator’s wishes in their will.

    Guardian. A guardian can be appointed for property or personal care where an individual no longer has the capacity to make decisions about their finances or personal care. This is often a role undertaken by a family member or friend, however, estate lawyers are also able to step in.

    Holographic will. A holographic will is an alternative to a will prepared with the help of a lawyer. Instead, it is handwritten and signed by the testator. It is a good option for those who may not have access to other resources or who cannot sign in front of a witness.

    Inheritance. This term describes the act of distributing assets of an individual who has passed away to their descendants. The will remains important here too, especially where the deceased has no descendants to transfer assets or if they prefer a particular arrangement involving their spouse.

    Intestacy. A person is intestate when they pass away without having arranged for a last will and testament.

    Issue. This term refers to the people who are below another in the family tree. This includes that person’s children, their grandchildren, their great-grandchildren, and so on. The term does not include parents, siblings, and nieces or nephews.

    Last will and testament. Commonly referred to as simply a will, this is a document through which an individual dictates how their assets will be distributed on their passing. It can include other directions, such as how property is to be used and how dependents should be cared for.

    Living will. This is a document that an individual can use to dictate instructions about future medical treatment should they become incapacitated and/or lose the ability to communicate.

    Mirrored will. A mirrored will is a will that is entered at the same time as another with the exact same terms as that other will. This is typically used in spouses or common-law partners where each names the other beneficiary.

    Personalty. Personalty is a term used to describe moveable assets that are not real property, money, or investments. Also known as “personal property.”

    Power of Attorney. A power of attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf. These decisions include those pertaining to the management of your finances, property and other assets.

    Probate. This is the term used to describe the process of handling someone’s estate after their death. Probate procedures in Ontario set out what should happen to transfer assets from one generation to the next.

    Realty. Also known as “real property.” Realty includes real estate or the land and anything grown, built, or affixed to it.

    Testacy. This term refers to an estate when that person has passed away with a last will and testament arranged. This person has “died testate.”

    Testator. A testator is a person who has made a will.

    Will registration. After a will is probated in Canada, it is registered with probate courts after the testator has died. Note that a will does not have to be registered to be made legal.

    Contact the Estate Lawyers at Derfel Estate Law in Toronto to Address Legal Disputes Regarding a Will

    At Derfel Estate Law, our experienced team of estate lawyers is always up to date on estate administration requirements and can assist with will challenges. We work tirelessly to achieve the best possible resolution in your will, estate, or trust matter. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.

  • What Happens When You Don’t Execute a Will in Ontario?

    What Happens When You Don’t Execute a Will in Ontario?

    Not a lot of people think about inheritance law and what that means for them in Canada. Understanding the basics of this area helps to ensure that you can be informed to make necessary arrangements after your passing.

    Testamentary freedom

    Let’s start with the basics: Testamentary freedom is the right to choose who you leave your assets to when you pass away. Usually, this is done in a Will. This right is limited by provincial laws and the laws of the country in which your assets are located. Provincial laws also dictate who benefits from an estate in the event that there is no Will.

    Testamentary freedom has different limits in each province in Canada

    The laws governing succession (i.e., who inherits what) differ among the provinces of Canada. For example, in Ontario, the law states that when there are no surviving parents or children, then brothers and sisters will inherit equally; however, if there is only one brother or sister, they will receive two-thirds of the estate while their sibling receives one-third.

    In Alberta and New Brunswick, it is permitted for a deceased person’s spouse to elect against a Will made by their deceased partner. They can do this by making an application within 30 days after receiving notice of their death. It is therefore important to understand the laws pertaining to your province in particular in lieu of seeking general advice on the internet.

    The importance of having a Will

    A Will is a legal document that specifies how you want your assets distributed after your death. You can include in the Will any of the following:

    • Details of your funeral arrangements;
    • Who gets what, and under what circumstances (for example, if a child may have health problems); and
    • Specific instructions on how to deal with any debts you might leave behind.

    A Will also helps protect your family’s interests by ensuring that they’re taken care of in accordance with the wishes you expressed in life. In addition to giving direction about who gets what upon death, Wills can also specify how much should be spent on legal fees for estate planning and administering a trust fund—and these cost savings can be significant if there are multiple beneficiaries involved.

    A well-crafted Will can also help reduce taxes owed by ensuring that income from investments is distributed according to personal tax strategies. Having a validly executed last testament ensures that, after one dies, their estate will not be subject to probate court proceedings which could delay distributions beyond what is desired. Instead, a Will allows families or individuals named as heirs access to the estate immediately upon death without having to go through additional legal processes like probate court hearings or other reviews by courts.

    What happens when you don’t execute a Will at all?

    What happens when you don’t execute a Will at all? In the case of intestacy, it depends on where a person was last domiciled. The rules vary among provinces, but generally:

    • If your loved one died in Alberta, the estate in its entirety will go to the surviving spouse or common law partner. If the deceased has children from another relationship, the surviving partner is awarded less so that those children can be compensated.
    • If your loved one died in British Columbia, their estate would be distributed through their family tree. Spouses have special rights when property exists only in the deceased’s name. In the case of joint property, the land’s title will pass to the surviving owner.
    • If your loved one died in Manitoba, their estate is distributed in accordance with their hierarchy of beneficiaries starting with the spouse. After the spouse receives a share, the estate is further divided amongst the children, and then all other family members.
    • If your loved one died in one of the Atlantic provinces, a portion of the estate usually goes to the spouse first, and then the rest goes to the children. It is notable that common law spouses do not qualify as spouses under this regime.

    Ontario’s Succession Law Reform Act

    The Succession Law Reform Act is the legislation governing what happens with an individual’s estate after their passing in Ontario. Generally, an individual’s spouse will receive the property in its entirety. However, where there are children, the property is split equally between the surviving spouse and the children. In other words, if there is one child, the surviving spouse would get half of the estate. If there are two children, the spouse would get one-third.

    If the deceased has no descendants (referred to as “issue”), the Succession Law Reform Act stipulates the following:

    47 (1) …where a person dies intestate in respect of property and leaves issue surviving him or her, the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her issue who are of the nearest degree in which there are issue surviving him or her.

    The Succession Law Reform Act goes into further detail with respect to how the estate might be distributed amongst parents, siblings, and nieces and nephews where there is no issue. The important takeaway is that it is very critical to have a Will in place so your loved ones can avoid the complicated process of dividing up your estate.

    What happens when the terms of your Will are unclear

    It is sometimes the case that a Will is in place, but its terms are unclear. When this is true, it may open up the door for family members to challenge the validity of terms within the Will.

    When tasked with interpreting a Will, a court will interpret the Will according to the words used. The court will also consider the Will according to the intention of the testator. Other factors the court may look at include:

    • Whether or not there are any doubts about what was intended by a specific provision in a Will;
    • Whether or not there are any doubts about who is meant by some word used in a particular provision; and
    • Whether or not there are any questions left unanswered by an ambiguous provision (i.e., whether it can be said that “the intention of this provision” really means something different).

    Contact Toronto Estate Lawyers at Derfel Estate Law to Challenge the Terms of a Will

    At Derfel Estate Law, our experienced team of estate lawyers is always up to date on estate administration requirements and can assist with Will challenges. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.