Can a notebook entry be considered a will?
In Ontario, the answer is “yes,” as a recent decision demonstrates. But it’s not an example you should follow if you want to keep your own estate out of the courts after you’re gone.
A close friend and neighbour of the deceased found the notebook at the centre of the case about a week after its owner died in January 2022, following a lifelong struggle with heart issues.
The notebook contained photocopied excerpts from the man’s properly executed and witnessed 2012 will, along with handwritten annotations explaining his updated wishes. He had signed the notebook in the month before his death, but the signature was not witnessed.
Critically, the new version stated explicitly that the man’s home – which formed the bulk of his estate – should go to the neighbour. She applied to the court to have the notebook’s contents validated, while a relative of the deceased – previously a residual beneficiary of the 2012 will – objected.
After listening to the evidence, the judge sided with the neighbour, finding that the notebook, together with the 2012 will, represented an authentic expression of the deceased’s testamentary intentions. He also rejected the relative’s claim that the deceased was incapacitated by his health problems.
In years gone by, there was virtually no chance that an Ontario court would validate a cut-and paste notebook entry like this one as a valid testamentary document. However, that all changed in 2021, when the Accelerating Access to Justice Act moved Ontario from a “strict compliance” regime to one of “substantial compliance.” In basic terms, this means that judges are now able to probate wills that would otherwise have been declared void due to technical errors.
Ontario was one of the last strict compliance holdouts in Canada, but I’m still not entirely sure our elected representatives made the right decision on this issue. On the upside, the new rules have prevented a significant number of intestacies. But at the same time, they have destroyed any certainty about which wills will be considered valid by a judge.
Three years on from the changes, “substantial compliance” cases concerning faulty or unconventional wills are really starting to flow through the courts and there isn’t much sign of them slowing any time soon.
Each decision gives litigators representing both will challengers and defenders a better idea of how to build their case in court. But they also come at a cost, and I can’t help but think of all the money beneficiaries must spend to get the result they seek – funds that often come straight out of the deceased’s estate.
The best way for testators to avoid the expense and delay of this kind of estate litigation is to hire an experienced lawyer who can ensure their will is not only properly executed, but also accurately reflects their wishes.
Whether your estate is simple or complicated it is always advised to obtain legal advice before finalizing an estate plan.
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