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Estates - Succession Law Reform Act (SLRA). Hejno v. Hejno
In Hejno v. Hejno (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this brought against "the order of the application judge ... validating unsigned 2024 draft wills under s. 21.1 of the Succession Law Reform Act".
Here the court grounds it's decision on the absence of reasons, even though the proceeding below was unopposed:[11] On November 26, 2024, the application judge declared the 2024 drafts and the spousal trust they created for Jennifer to be valid and ordered John’s estate to continue to pay spousal support to Irene. He provided no reasons for his decision, perhaps because the application was unopposed.
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(1) The 2018 Will Is Admissible as Fresh Evidence
[15] First, the 2018 will is admissible under the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. It is relevant, credible, could not have been discovered earlier with due diligence, and could reasonably affect the result. Its existence might weigh against validating the later not fully executed 2022 wills and the 2024 drafts in the absence of a cogent explanation for the change in distribution: Hadley Estate (Re), 2017 BCCA 311, 416 D.L.R. (4th) 673, at para. 43.
(2) The 2024 Drafts Are Invalid
[16] Second, the application judge’s order validating the 2024 drafts should be set aside and those drafts declared invalid.
[17] The absence of reasons removes deference and justifies our intervention. Courts must ensure that documents validated under s. 21.1 of the SLRA truly express the testator’s wishes, and the lack of opposition did not remove the need to decide the application according to the law and the evidence: Penate v. Martoglio, 2024 ONCA 166, 496 D.L.R. (4th) 50, at para. 20; Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd., 2023 BCCA 436, at para. 89.
[18] Since we do not have the benefit of reasons in the court below or full argument before us, this is not an appropriate case for us to definitively determine the legal test that governs applications under s. 21.1 of the SLRA. It is also unnecessary for us to do so here, since we are satisfied that the application judge’s order validating the February 2024 wills cannot stand.
[19] The 2024 wills were not duly executed in accordance with the governing statutory formalities and, unlike the 2022 wills, they were not executed even in an imperfect manner. Further, they cannot be taken as an expression of John’s testamentary intentions. The evidence of his lawyer, Simpson, confirmed that as late as April 2024, John remained undecided on aspects of his estate planning. As well, the unsigned and uninitialed inserted slipsheets recorded ownership interests at odds with the accountant’s evidence, which raises significant doubt as to their reliability. Collectively, this evidence makes validation inappropriate. . Devonport v. Devonport
In Devonport v. Devonport (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought against an estates application that applied the 'substitutional gifts' provision [SLRA s.31] to grant real estate to the spouse of the deceased son to whom it was bequested by will:[1] The appellant appeals from the judgment of the application judge interpreting the will of Eleanor Martha Devonport (the “testator”). The will provided for a specific bequest to the testator’s son of a property on Hopewell Avenue in the City of Ottawa. The testator’s son pre-deceased her. The application judge found that the Hopewell property did not lapse into the residue of the testator’s estate, but rather, pursuant to s. 31 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), passed to the wife of the testator’s son. On that basis, the application judge declared the son’s wife the owner of the Hopewell property from the date of the testator’s death.
[2] After hearing submissions from the appellant, we dismissed the appeal without calling on the respondent, with reasons to follow. These are our reasons.
[3] The appellant argues that the application judge erred in concluding that the anti-lapse provision of s. 31 of the SLRA applied. The appellant argues that the terms of the will show a contrary intention which renders s. 31 inapplicable. The appellant further argues that the application judge erred in excluding the evidence of the solicitor who assisted the testator in drafting the will.
[4] We are not persuaded that the application judge erred. The application judge’s interpretation of s. 31 of the SLRA was correct and consistent with the jurisprudence. He also correctly set out the principles applicable to interpreting the terms of a will and determining the subjective intention of the testator. He made no palpable and overriding error in his interpretation of clause 3(e) of the will, which provided for the disposition of the Hopewell property, in the context of the will as a whole, and made no error in concluding that the will did not show a contrary intention which would oust the application of the anti-lapse provision in s. 31 of the SLRA. Nor did the application judge err in his interpretation of clause 6, which he found would only become operative if one of the beneficiaries separated or divorced. . Alger v. Crumb
In Alger v. Crumb (Ont CA, 2023) the Court of Appeal briefly reviews the history of the Succession Law Reform Act (SLRA):[12] The SLRA was enacted in 1977 and replaced four statutes. Part I “Testate Succession” replaced the Wills Act, S.O. 1966, c. 433; Part II “Intestate Succession” replaced parts of the Devolution of Estates Act, R.S.O. 1970, c. 129; Part IV “Survivorship” replaced the Survivorship Act, R.S.O. 1970, c. 454; and Part V “Support of Dependents” replaced the Dependents’ Relief Act, R.S.O. 1970, c. 126.
[13] Part III “Designation of Beneficiaries of Interest in Funds or Plans” contains new provisions that specify how a person who owns certain defined plans or funds can designate a beneficiary to receive the plan or fund on the person’s death.[1] Section 50 defines a “plan” to include an RRIF and a TFSA as defined under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp).[2]
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