Ontario Wills and Trusts Law — Wills Act, Estate Litigation, and Substitute Decisions

Wills Act — Formal Validity Requirements

In Ontario, a testamentary instrument (will) is only valid if it meets the formal requirements of the Wills Act RSO 1990 c W.11. Section 4 of the Wills Act provides that a will must be: (1) in writing; (2) signed at its end or foot by the testator or by some other person in the testator's presence and at the testator's direction; (3) made in the presence of and attested by two or more witnesses present at the same time who subscribe (sign) the will in the presence of the testator.

A holograph will — entirely in the handwriting of and signed by the testator — is valid under Wills Act s.6 without the witnessing requirements. Holograph wills in Ontario do not require witnesses; however, interpreting a holograph will may be more difficult if the document does not clearly express testamentary intent.

International wills: Ontario adopted the Convention Providing a Uniform Law on the Form of an International Will (Annex to the Washington Convention) through Schedule B of the Wills Act. An international will executed in compliance with the convention requirements (written, signed by testator before two witnesses and an authorized person, with an attaching certificate) is valid regardless of where it was made.

The Succession Law Reform Act RSO 1990 c S.26 (SLRA) supplements the Wills Act and governs intestate succession, dependant support, and other estate matters.

Testamentary Capacity

Testamentary capacity requires the testator to understand: (1) the nature of making a will and its effects; (2) the extent of the property being disposed of; (3) the claims of persons who might reasonably expect to benefit; and (4) the testator must not suffer from any disorder of the mind that poisons the affections, perverts the sense of right, or prevents the exercise of the natural faculties in disposing of property. Banks v Goodfellow (1870) LR 5 QB 549 established these four elements and they continue to be applied in Ontario.

The standard for testamentary capacity was addressed in more detail for Ontario practice in Banton v Banton (1998) 164 DLR (4th) 176 (Ont Gen Div), which remains a key reference for capacity assessment in contested estate matters. Capacity is assessed at the time of execution; a testator may have capacity at the time of executing the will even if suffering from dementia at other times (a "lucid interval").

Medical evidence and capacity assessments (from geriatricians, neuropsychologists, or attending physicians) are central to contested capacity cases. Estate lawyers drafting wills for elderly clients or clients with cognitive concerns should consider contemporaneous capacity documentation through a qualified healthcare professional.

Undue Influence

Undue influence in the testamentary context is distinct from the contractual doctrine. A will may be set aside if the testator's true testamentary intentions were overborne by another person's influence. The test is whether the influence was such that the will represents not the testator's wishes but those of another. Hall v Hall (1868) LR 1 P & D 481 — mere persuasion, advice, and even importunity of family members does not constitute undue influence; it must amount to coercion.

In Ontario, suspicious circumstances surrounding execution of a will — particularly where a beneficiary was instrumental in the preparation of the will — may shift the burden to the propounding party to show that the testator knew and approved of the contents and that there was no undue influence. Wingrove v Wingrove (1885) 11 PD 81 remains an influential statement of the undue influence doctrine in the testamentary context.

Dependant Support — SLRA Part V

Part V of the Succession Law Reform Act RSO 1990 c S.26 (ss.58-72) creates an obligation for a testator to make adequate provision for the support of dependants. A "dependant" is defined in s.57 as a spouse (including common-law partner of at least three years), a parent, child (including adult children), or sibling of the deceased to whom the deceased was providing support immediately before death, or was under a legal obligation to provide support.

A dependant who is not adequately provided for under the will or intestacy may apply to the court under s.58 for an order for support from the estate. The court considers factors under s.62 including: the dependant's current assets and means; the nature of the dependant's relationship to the deceased; the size of the estate; the moral claims of other beneficiaries; any agreement between the deceased and the dependant; the testator's reasons for not providing for the dependant (if stated); and other dependants and claims on the estate.

An application for dependant support must be commenced within six months of the grant of probate or letters of administration (SLRA s.61). The limitation period is procedural and the court has discretion to extend it in appropriate circumstances.

Substitute Decisions — POA for Property and Personal Care

The Substitute Decisions Act SO 1992 c 30 (SDA) and the Health Care Consent Act SO 1996 c 2 Sch A (HCCA) govern substitute decision-making in Ontario. A power of attorney for property (continuing power of attorney — CPOA) allows a grantor to appoint an attorney to manage property and financial affairs. A continuing POA for property is valid even if the grantor subsequently becomes mentally incapable — this is the distinguishing feature of a "continuing" power of attorney under SDA s.7.

A power of attorney for personal care (POAPC) under SDA s.46 authorizes the attorney to make decisions about the grantor's personal care — health care, shelter, nutrition, hygiene, and safety — when the grantor is incapable. Both the CPOA and POAPC must be signed before two witnesses who are not the attorney, the attorney's spouse or partner, the grantor's spouse, or a child of the grantor or person treated as such (SDA s.10(1)).

The Office of the Public Guardian and Trustee (OPGT) may be appointed as statutory guardian of property for a person found incapable by the Consent and Capacity Board or through an assessment under the SDA, if no suitable attorney exists.

Estate Administration — Certificates of Appointment

An executor named in a will derives authority from the will itself. However, to deal with estate assets (sell real property, access bank accounts, administer RRSP/RRIF assets that do not pass outside the estate), a Certificate of Appointment of Estate Trustee With a Will (probate) from the Ontario Superior Court of Justice is typically required. For intestate estates, a Certificate of Appointment of Estate Trustee Without a Will is required.

The Estate Administration Tax Act RSO 1990 c E.22 imposes estate administration tax (commonly called probate fees) on the value of assets flowing through the estate: 1.5% of the value of the estate over $50,000 (no tax on the first $50,000; 0.5% on $50,001-$250,000 as of January 2020 amendments phased out this tier making it 1.5% on all amounts over $50,000). The executor must file an Estate Information Return with the Ministry of Finance within 180 days of the Certificate of Appointment.