Even in a world where digital documents and electronic communication are standard practice, pen and paper is still relevant in the realm of estate law. Many individuals living in Ontario choose to update or change their wills with handwritten notes, such as in the Estate of Harold Franklin Campbell (Re). This case considered whether handwritten notes were valid revivals of a will under the laws of Ontario. It also demonstrated the limits of the Court’s ability to impute a testator’s intentions.
Reviving Wills in Ontario
In Ontario, the laws relevant to reviving wills are governed by the Succession Law Reform Act and related legal principles. Specifically, section 19 provides the procedure for reviving a will, which occurs after the proper drafting and execution of a codicil. A codicil is a legal document used to make amendments or changes to an existing will. A codicil allows a person to modify specific provisions of their will without creating an entirely new will. It supplements the original will and is subject to the same legal requirements and formalities as a will.
If a codicil has been validly drafted, section 21 of the Succession Law Reform Act deems the will to have been made when it was revived. It also enables to Court to order that a document or writing (including a codicil) that revives a will is valid, even where it was not properly executed under the Succession Law Reform Act, as long as the document or writing sets out the “testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased.”
The operation of these two sections was the issue before the Court.
Testator Drafts Two Handwritten Notes
The matter of the Estate of Harold Franklin Campbell (Re) involved four parties who were identified by their first names by the Court: Harold, the testator; Christopher and Lisa, the children of Harold’s first marriage; and Carol, Harold’s second wife. Harold had a will that he executed after the death of his first wife in 1996. The will named Christopher as the estate trustee and Lisa the alternate estate trustee. Both were equal beneficiaries of the estate.
After Harold married Carol in 2000, the will was revoked through the operation of section 16 of the Succession Law Reform Act (which has since been repealed). At the time, this section operated to revoke the original will due to the second marriage. However, Harold made two handwritten notes in 2016 and 2017, which he signed and stapled to the will. The 2016 note included specific items that Harold requested be given to Carol. The 2017 note dealt with how Harold wanted his remains disposed of. Justice Chang noted that these handwritten notes were valid codicils under the Succession Law Reform Act.
The issue of the case was whether the will was revived through these codicils, as was Christopher’s position. Christopher brought the application for a small estate certificate and directions for the validity of Harold’s will. Lisa and Carol took no position in the case.
Two Handwritten Notes Revive Will
Justice Chang found that the 2016 note revived the will. He noted the language of section 19, which he referred to as “clear” that a codicil revived a will based on the testator’s intention. The drafting of the 2016 note demonstrated that Harold thought the will was valid and sought to vary it by specifying the items to be given to Carol. Justice Chang found that by “making of that codicil, he gave effect to the Will.” The legislation operates automatically to give effect to Harold’s intentions, reviving the will without any further process.
As part of his application, Christopher argued that the Court should order that the notes were valid revivals of the will. This was considered unnecessary by Justice Chang as he noted that the codicils were enough, under section 19, to show Harold’s intention to give effect to the will. The intention did not need to be “read in.” In this respect, he relied on the well-settled law that legislation must be read “in their entire context and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” In light of section 21, Justice Chang found that the language of the legislation does not permit the court to “read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence.” The intentions of the testator are only to be interpreted based on the contents of the codicil or will.
Nevertheless, the Court found that the will was revived and is valid. This case reaffirms the importance of statutory interpretation of the Succession Law Reform Act, particularly the powers of the Court in determining the testator’s intentions. It confirms that these intentions cannot be read into the will and cannot be “created out of a whole cloth.”
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