A recent example of the importance of proper will planning

February 11, 2020 | Jennifer A. N. Corak

In Ontario, if an individual dies without a valid will, their estate will pass in accordance with the laws of intestacy, which are set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”).  This is, for some, the motivating factor for engaging in the estate planning process as a person can, in their will, specify who is and is not to inherit a portion of their estate.  In such circumstances, it becomes even more important for the person executing the will (the testator) to take the time to think through their wishes, remembering that we cannot plan the order in which individuals die.  The case of Re Vaudrey, 2019 ONSC 7551, serves as an example of how a testator’s wishes can be defeated despite taking the time to execute a will.

The deceased, William J. Vaudrey (the “Deceased”), died in September 2018.  His wife, Ethel, died in January 2007.  The Deceased and his wife had two adopted children, Sheila and Kristin. Sheila died in September 2013 without a spouse or any children.  Kristin became estranged from the Deceased after her parents divorced when she was 12 years old.  She described the Deceased as being emotionally and verbally abusive to Ethel, Sheila and Kristin and indicated that she remained close with Sheila until Sheila’s death.  There was no evidence that the Deceased had any children other than Kristin and Sheila.

Kristin applied to the court for the following relief: (i) a declaration that a will said to be executed by the Deceased in 2005 and witnessed by Sheila and another witness (the “Will”) was valid; (ii) an order appointing her as the Estate Trustee with a Will; (iii) a finding that the Will resulted in an intestacy; and (iv) a declaration that Kristin was the heir-at-law of the residue of the Deceased’s estate.[i]

The Will provided for Sheila to be appointed as estate trustee and to inherit the residue of the Deceased’s estate if she survived the Deceased by 30 days (which she did not).  It went on to provide that should Sheila not survive the Deceased by 30 days, Ethel was to be appointed as trustee and inherit the residue of the Deceased’s estate, provided she survived the Deceased by 30 days (which she did not).  The Will did not specify what was to happen if neither Sheila nor Ethel survived the Deceased by 30 days.  The Will did, however, include a statement at the bottom of the first page: “I state unequivocally that under no circumstances is any part of my estate to be transferred to my estranged daughter, Kristin P. Vaudrey, or to any of her descendants.”[ii]

The court found that the Will was valid.  The decision starts off by considering subsection 4(1) of the SLRA (i.e. the section of the SLRA that sets out the requirements for execution of a will) and concluding that there was no evidence to suggest the Will was not properly executed in accordance with that provision.[iii] It continues on to point out that although Sheila, who was named as a beneficiary in the Will, acted as one of the witnesses, this did not invalidate the Will.  Instead, pursuant to subsection 12(1) of the SLRA, Sheila’s acting as a witness to the execution of the Will had the effect of rendering the bequest of the residue of the Deceased’s estate to Sheila void.  Further, the Deceased’s statement in the Will attempting to disinherit Kristin did not serve to invalidate the Will.

Since there was no evidence that the Deceased had any children other than Kristin and Sheila or that the Deceased had any other family members who might have been available and interested to act as estate trustee of the Deceased’s estate, it was ordered that, on filing the original Will with the court, a Certificate of Appointment as Estate Trustee with a Will was to be issued to Kristin.

Where a person seeking to be appointed as estate trustee is not appointed under a will, the Estates Act, R.S.O. 1990, c. E.21, provides that an administration bond is required.  However, the court has the power to dispense with such requirement.[iv] Taking into consideration the approximate value of the Deceased’s estate, along with the fact that Kristin was employed on a full-time basis, was a home owner and had equity in her home in excess of the value of the Deceased’s estate, the court found that little to no purpose would be served by requiring Kristin to post a bond and dispensed with the requirement.

With the finding that the Will was valid, Kristin was to be appointed as the estate trustee and that she would not be required to post a bond, the next question related to the distribution of the residue of the Deceased’s estate.

As mentioned earlier, the Will did not indicate how the residue of the Deceased’s estate was to be distributed in the event that neither Ethel nor Sheila survived him by 30 days.  Therefore, the residue was to be distributed in accordance with the laws of intestacy as set out in Part II of the SLRA.  Specifically, pursuant to s. 47 of the SLRA, since the Deceased left no spouse surviving him, and since Sheila did not leave any children surviving her, Kristin was the heir-in-law entitled to the residue of the Deceased’s estate, despite the statement in the Deceased’s Will that he did not wish for Kristin to inherit a portion of his estate.  Although it would have been within the Deceased’s rights to set out how the residue of his estate was to be distributed in the event neither Sheila nor Ethel survived him by 30 days, excluding Kristin from inheriting under his Will, he did not do so, resulting in Kristin inheriting a portion of the Deceased’s estate against his wishes.

Facing one’s own mortality and engaging in the estate planning process is difficult for many people. It requires time and consideration of scenarios that most would rather avoid (for example, the death of a loved one).  That said, taking the time to properly plan out one’s Will with a professional who specializes in estate planning can help improve the chances that one’s wishes are carried out following their death.


[i] Re Vaudrey, 2019 ONSC 7551 at para 9 [Vaudrey].

[ii] Ibid at para 8.

[iii] To read about a recent case dealing with the due execution of wills, please see the author’s article “Due Execution of Wills: The Ontario Case of Bayford v Boese” 

[iv] See Estates Act, R.S.O. 1990, c. E.21 at ss. 35 to 37.

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