Estate planning is often treated as a task that can be handled once and set aside for years. However, a recent Ontario decision illustrates how uncertainty can arise when a person leaves behind multiple documents, incomplete papers, handwritten directions, or informal records that appear to relate to their estate.
In Liscombe v. Groskopf et al, the Court was asked to determine whether a collection of documents dated October 18, 2005, should be validated as a deceased person’s last will and testament. The applicant also argued that those documents should revoke a previously validated will from 2004. In the alternative, the applicant asked the Court to find that the estate should be administered as an intestacy. The application was dismissed, and costs were awarded against the applicant.
For Ontario estate planning purposes, the decision offers a useful reminder that testamentary intention, revocation, and document organization can become central issues after death. It also highlights the practical risks of relying on informal papers, incomplete will kit materials, or records that are not clearly connected to a finished estate plan.
Competing Documents and a Prior Validated Will
The deceased had previously left behind an undated handwritten fill-in-the-blanks document. In an earlier application, the Court validated that document as the deceased’s last will and testament under section 21.1 of Ontario’s Succession Law Reform Act. That earlier decision recognized the document as reflecting the deceased’s fixed and final testamentary intentions.
After that application, another family member reviewed a box of the deceased’s documents. He later discovered a collection of papers dated October 18, 2005, including handwritten and initialled pages, a signed but undated signature page from a self-counsel will kit, and several fill-in-the-blanks sheets listing personal property, real property, storage contents, and safes.
The applicant argued that this later collection of documents should be validated as the deceased’s final will. If accepted, that position would have displaced the earlier validated will. In the alternative, the applicant argued that the later documents called the earlier will into question and that the estate should instead be treated as an intestacy.
What the Later Documents Contained
The documents presented to the Court were not a complete will. Some pages were missing. There was no page naming an executor or alternate executor. There was also no page addressing the residue of the estate.
Some of the documents came from a self-counsel will kit. They were initialled but not dated. A signature page was signed by the deceased and two other people, but it was also undated. Other handwritten pages included the notation “Dated this the 18th day of October, 2005.”
The documents appeared to contain directions about property and estate administration. However, the Court noted that they did not clearly identify to whom they were addressed, and some documents appeared more like supporting notes than a complete testamentary instrument.
Section 21.1 and Ontario’s Substantial Compliance Rule
Ontario’s substantial compliance rule under section 21.1 of the Succession Law Reform Act allows the Court to validate a document that was not properly executed as a will if the Court is satisfied that it sets out the deceased’s testamentary intentions.
The Court described the test as involving two questions:
- Is the document authentic?
- Does the document set out the testamentary intentions of the deceased?
In this case, authenticity was not disputed. The issue was whether the documents showed the deceased’s fixed and final intention to dispose of property after death. The applicant had the onus of proving that point on a balance of probabilities.
Why Authenticity Was Not Enough
The Court found that the documents could not be treated as a will with missing pages. Although the papers appeared to have been prepared by the deceased, the Court was not satisfied that they represented a complete, final estate plan.
One important factor was the missing content. The absence of an executor appointment and a residuary clause created significant gaps. A will may fail for many reasons, but where documents do not show how the full estate is to be administered or distributed, proving fixed and final testamentary intention can become difficult.
The Court also considered a document titled “Storage & Safes.” That document referred to a storage box containing a “copy of will” and a safety deposit box containing an “original will.” The Court found that this reference suggested the documents were not themselves the will, but rather a memorandum prepared in connection with another will.
Informal Notes Can Create Confusion
The handwritten pages included directions that were consistent with the earlier validated will. For example, the Court noted that certain directions about property and the care of dogs aligned with the existing validated will.
This consistency mattered. Rather than showing that the deceased had replaced the prior will, the later papers appeared to support or supplement the estate plan already validated by the Court.
The location of the documents also played a role. The later papers were found among business records, not in the lockbox where the earlier validated will had been discovered. The applicant’s own evidence was that he was surprised to find the documents in that location. While storage location is not always determinative, it can form part of the broader factual picture.
Revocation Requires More Than a Later Signature Page
The applicant also argued that the later documents revoked the earlier validated will. The Court rejected this argument. Section 15 of the Succession Law Reform Act addresses when a will, or part of a will, is revoked. In this case, the Court stated that the mere existence of an executed signature page did not inevitably mean that a new will had been made in 2005 in accordance with the Act.
To find that the earlier will had been revoked, the Court would have had to conclude that a subsequent will had been made and that the requirements for revocation had been met. On the evidence before it, the Court was not prepared to make that finding.
The Court Also Rejected Intestacy
The applicant’s alternative argument was that the estate should be administered as an intestacy. The Court rejected that position as well.
The Court found that the deceased did not intend to die intestate. The deceased had prepared various documents addressing how her estate should be administered. The earlier validated will had already been found to represent her fixed and final testamentary intentions.
In that context, the later incomplete documents did not displace the existing will, nor did they justify treating the estate as though there were no valid testamentary document at all.
Costs Followed the Result
The application was dismissed with costs. One respondent received costs fixed at $1,000. Another respondent received costs fixed at $12,000, inclusive of HST and disbursements.
The Court declined to order that the parties’ costs be paid from the estate. It found that public policy considerations did not apply and that the litigation was not caused by ambiguity attributable to the deceased. Instead, the usual civil litigation costs rules applied.
The Importance of Clarity in Estate Planning
The Liscombe case shows that estate planning is not only about deciding who receives property. It is also about making those decisions clear, final, and usable when the time comes.
Ontario’s substantial compliance regime provides flexibility in certain cases, but it is not a substitute for careful planning. The Court must still determine whether a document expresses the deceased’s fixed and final testamentary intentions. Informal papers, partial will kit materials, or handwritten directions may not be enough.
Contact Bader Law for Comprehensive Wills & Estates Services in Mississauga & Oakville
For assistance with wills, powers of attorney, and estate planning documents, contact Bader Law. We work with individuals, families, business owners, and estate trustees in Mississauga, Oakville, and across the GTA, to prepare clear estate planning documents that reflect current wishes and reduce uncertainty for loved ones. To discuss an Ontario will, codicil, estate plan, or succession planning matter, contact one of our wills and estates lawyers by reaching out online or by calling (289) 652-9092.