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Reasons - Where Proceeding Unopposed. 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.
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