Executive Summary
Like many commonwealth jurisdictions, Ontario has dependent relief legislation, intended to ensure that a will-maker makes some provision for those dependent upon him or her. The manner in which the courts have applied the Wills Variation Act of Ontario is, however, different from most other jurisdictions. This Report attempts to review all of Ontario’s succession legislation, with the intention of ensuring its integrity and relevance and that, as a whole, the legislation operates as effectively and harmoniously as possible. The Report focuses primarily on Succession Law Reform Act but also includes an examination of relevant provisions of The Estate Act.
Succession Law Reform Act
Like the wills legislation of many other common law jurisdictions, Ontario’s Succession Law Reform Act is based on the Wills Act 1837, which was an attempt to rationalize and simplify the law as it then stood. Over time, however, it became apparent that the legislation also required simplification and rationalization, and numerous reviews have been undertaken, and recommendations made, in Ontario with respect to the Wills Act 1837 and its progeny. This report makes several recommendations relating to the requirements for execution of a will so as to reduce the likelihood of part or all of a will being ruled invalid on technical grounds. It is also suggested that the age at which a valid will may be executed should be reduced from 18 to 16. It also recommends that the definition of “handwriting” be extended to include mouth writing, foot writing, and similar kinds of writing. The question of whether videotape, cinematographic, and electronic wills should be admissible to probate is a vexing one, but this report considers that, on balance, they should not be and, accordingly, proposes that the Act be amended to clarify that position. Handwritten postscripts to holograph wills have not been valid since amendments to the Act in 1983, but this report states otherwise. This report states The Act’s provisions dealing with the ademption of gifts are inadequate, and should be amended in certain respects. One amendment would prevent the ademption of gifts in certain specified situations; another would prevent ademption of the proceeds of sale of property, as long as they could be traced. These amendments would bring the Act more into line with similar legislation in British Columbia and other provinces.
Common law is unclear about what law applies to the revocatory effect of a subsequent divorce on testamentary provisions dealing with immovable. This report recommends that, with respect to both movables and immovable, the effect of divorce or annulment of marriage should be determined by the testator’s domicile at the time of the decree. Finally, the common law provides that in construing a will a court should initially attempt to give effect to the testator’s intention without reference to rules and presumptions of law. If it must refer to law, the court should, if possible, refer itself to the law intended by the testator. Additional steps should only be taken if necessary. These common law rules should be codified in their entirety in the Act, instead of only partially as at present.
This report also considers the “absolute and remainder gift conundrum”. When a testator words a gift in absolute terms and adds words that apparently give a remainder estate to someone else, the outcome will differ according to which of two interpretations regularly applied by Canadian courts is adopted. According to one interpretation, the first phrase prevails and the remainder estate is invalid because it is repugnant to the initial absolute gift; under the other interpretation, the subsequent wording limits the initial gift to a mere life estate. A statutory rule of construction is necessary to remove the existing uncertainty in the law. Having decided that a statutory rule is required, we have struggled with the question of what that rule should be. We considered a number of options but were unable to reach a consensus, a problem reminiscent of many judicial decisions on this point. In the end this report concludes that the rule should provide that the first gift is absolute, notwithstanding the purported remainder gift.
As befits the single most important piece of succession legislation in Ontario, this report makes many additional recommendations for amendments to SLRA. These range from the inclusion of a complete, consolidated listing of the formal requirements for a valid will, through permitting the revival of a will that was revoked through destruction, to reversing the common law presumption that an inter vinos gift from a parent to a child is presumed to be an advancement.
Introduction
In this and the next decade, the largest transfer of wealth in history will take place as postwar generations begin to inherit from their parents. This transfer will have profound effects on economies and societies. One effect will be that the legal framework within which inheritance occurs will take on increased significance. `Any person can create a will as long as he or she meets the legally required standard. As a result, any will formed outside the governing law cannot be implement and such will are considered null and void. In general, there are necessary standards obligatory for a will to become effective. They include; a person making a will must have attained the permissible age, which is presumed to be eighteen years. Any will written by a minor cannot be considered to be abiding since minors are always under the care of the parents or guardians. The person making a will must be of sound mind or upright mental status. Such a person should be clearly informed of what a will entails, the range of property he or she owns, the cohesion bond existing between the person and the family members and information concerning the beneficiaries. In addition, a drunken person is classified in the same group as a person of unsound mind. The mental status of a drunken person is highly questionable. However, such wills can become fully effective if they are approved after full recovery of their markers. When someone dies, rights with respect to the property of the deceased person depend on the combination of common law principles and legislation comprising the law of succession. In Ontario, legislative provisions relating to succession to property on death are spread through a forest of different Acts. Among Acts that are primarily concerned with succession are: The Succession Law Reform Act and The Estate Act.
Part one of this Report provides an overview of the clauses that intends to describe the major technicalities of writing a will by breaking down the succession law reform act. Also it provides explanations to why it is important to write a proper will with the help of a lawyer incase of sudden death. It consists of important definitions required to help understand the concept of a will. Part two contains a proposed consolidated succession statute for Ontario entitled the Succession Law Reforms Act, and The Estates Act. Commentaries follow each section of the proposed Act and appear at the head of each major division. The commentaries in Part two explain specific changes that have been recommended and the rationale for them in somewhat greater detail than is found in Part One. The proposed Act is intended as an illustration of how the several main succession law statutes now in force could be blended into a single statute that carries forward legislation, which ought to be retained, and also implements the recommended changes to the law.
Legal Clause(s)
Power to dispose of property by will * A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity, including,
(a) estates for another’s life, whether there is or is not a special occupant and whether they are corporeal or incorporeal hereditaments;
(b) contingent, executory or other future interests in property, whether the testator is or is not ascertained as the person or one of the persons in whom those interests may respectively become vested, and whether he or she is entitled to them under the instrument by which they were respectively created or under a disposition of them by deed or will; and
(c) rights of entry, whether for conditions broken or otherwise. R.S.O. 1990, c. S.26, s. 2.
Will to be in writing * A will is valid only when it is in writing. R.S.O. 1990, c. S.26, s. 3.
Execution
* (1)Subject to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
Idem
* Where witnesses are required by this section, no form of attestation is necessary. R.S.O. 1990, c. S.26, s. 4.
Will of member of forces on active service * A person who is,
(a) a member of the Canadian Forces placed on active service under the National Defence Act (Canada);
(b) a member of any other naval, land or air force while on active service; or
(c) a sailor when at sea or in the course of a voyage, may make a will by a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness.
Certificate of active service * For the purposes of this section, a certificate purporting to be signed by or on behalf of an officer having custody of the records certifying that he or she has custody of the records of the force in which a person was serving at the time the will was made, setting out that the person was on active service at that time, is proof, in the absence of evidence to the contrary, of that fact.

Where certificate not available * For the purposes of this section, if a certificate under subsection (2) is not available, a member of a naval, land or air force is deemed to be on active service after he or she has taken steps under the orders of a superior officer preparatory to serving with or being attached to or seconded to a component of such a force that has been placed on active service. R.S.O. 1990, c. S.26, s. 5.
Holograph wills * A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. R.S.O. 1990, c. S.26, s. 6.
Position of signature * In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.
Idem
* A will is not rendered invalid by the circumstance that, (a) the signature does not follow or is not immediately after the end of the will; (b) a blank space intervenes between the concluding words of the will and the signature; (c) the signature,
(i) is placed among the words of a testimonium clause or of a clause of attestation,
(ii) follows or is after or under a clause of attestation either with or without a blank space intervening, or
(iii) follows or is after, under or beside the name of a subscribing witness; * the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or * there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.
Idem
* The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with section 4, 5 or 6 or this section does not give effect to,
(a) a disposition or direction that is underneath the signature or that follows the signature; or
(b) a disposition or direction inserted after the signature was made. R.S.O. 1990, c. S.26, s. 7.
Wills by minors * A will made by a person who is under the age of eighteen years is not valid unless at the time of making the will the person, (a) is or has been married; (b) is contemplating marriage and the will states that it is made in contemplation of marriage to a named person except that such a will is not valid unless and until the marriage to the named person takes place; (c) is a member of a component of the Canadian Forces,
(i) that is referred to in the National Defence Act (Canada) as a regular force, or
(ii) while placed on active service under the National Defence Act (Canada); or (d) is a sailor and at sea or in the course of a voyage.
Certificate of active service * A certificate purporting to be signed by or on behalf of an officer having custody of the records certifying that he or she has custody of the records of the force in which a person was serving at the time the will was made, setting out that the person was at that time a member of a regular force or was on active service within clause (1) (c), is proof, in the absence of evidence to the contrary, of that fact.
Revocation
* A person who has made a will under subsection (1) may, while under the age of eighteen years, revoke the will. R.S.O. 1990, c. S.26, s. 8.
Exercise of appointments by will * No appointment made by will in exercise of any power is valid unless the appointment is executed in the manner hereinbefore required, and every will executed in the manner hereinbefore required is, so far as respects the execution and attestation thereof, a valid execution of a power of appointment by will, despite the fact that it has been expressly required that a will made in exercise of such power shall be executed with some additional or other form of execution or solemnity. R.S.O. 1990, c. S.26, s. 9.

Publication unnecessary * A will made in accordance with this Part is valid without other publication. R.S.O. 1990, c. S.26, s. 10.
Effect of incompetency of witness * Where a person who attested a will was at the time of its execution or afterward has become incompetent as a witness to prove its execution, the will is not on that account invalid. R.S.O. 1990, c. S.26, s. 11.
Witness etc., beneficiary from will
Bequests to witness void * Where a will is attested by a person to whom or to whose then spouse a beneficial devise, bequest or other disposition or appointment of or affecting property, except charges and directions for payment of debts, is thereby given or made, the devise, bequest or other disposition or appointment is void so far only as it concerns, (a) the person so attesting; (b) the spouse; or (c) a person claiming under either of them, * but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity. R.S.O. 1990, c. S.26, s. 12
Where will signed for testator by another person * Where a will is signed for the testator by another person in accordance with section 4, to whom or to whose then spouse a beneficial devise, bequest or other disposition or appointment of or affecting property, except charges and directions for payment of debts, is thereby given or made, the devise, bequest, or other disposition is void so far only as it concerns, (a) the person so signing; (b) the spouse; or (c) a person claiming under either of them, * but the will is not invalid for that reason. R.S.O. 1990, c. S.26, s. 12 (2).
Where no undue influence * Despite anything in this section, where the Superior Court of Justice is satisfied that neither the person so attesting or signing for the testator nor the spouse exercised any improper or undue influence upon the testator, the devise, bequest or other disposition or appointment is not void. R.S.O. 1990, c. S.26, s. 12 (3); 2006, c. 19, Sched. C, s. 1 (1).
Exception
* Where a will is attested by at least two persons who are not within subsection (1) or where no attestation is necessary, the devise, bequest or other disposition or appointment is not void under that subsection.
Creditor as witness * Where property is charged by a will with a debt and a creditor or the spouse of a creditor whose debt is so charged attests a will, the person so attesting, despite the charge, is a competent witness to prove the execution of the will or its validity or invalidity. R.S.O. 1990, c. S.26, s. 13.
Executor as witness * A person is not incompetent as a witness to prove the execution of a will or its validity or invalidity solely because he or she is an executor. R.S.O. 1990, c. S.26, s. 14.
Revocation generally * A will or part of a will is revoked only by, a) marriage, subject to section 16; b) another will made in accordance with the provisions of this Part; c) a writing, (i) declaring an intention to revoke, and (ii) made in accordance with the provisions of this Part governing making of a will; or d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it
Revocation by marriage * A will is revoked by the marriage of the testator except where, a) there is a declaration in the will that it is made in contemplation of the marriage; b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.
Revocation, change in circumstances * Subject to subsection (2), a will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances.
Exception on termination of marriage * Except when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity, a) a devise or bequest of a beneficial interest in property to his or her former spouse; b) an appointment of his or her former spouse as executor or trustee; and c) the conferring of a general or special power of appointment on his or her former spouse, * are revoked and the will shall be construed as if the former spouse had predeceased the testator. R.S.O. 1990, c. S.26, s. 17.
Alterations in will * Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Part governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent.
How validly made * An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made, a) in the margin or in some other part of the will opposite or near to the alteration; or b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will. R.S.O. 1990, c. S.26, s. 18. c) Revival * A will or part of a will that has been in any manner revoked is revived only, a) by a will made in accordance with the provisions of this Part; or b) by a codicil that has been made in accordance with the provisions of this Part, * that shows an intention to give effect to the will or part that was revoked, or, a) by re-execution thereof with the required formalities, if any.
As to part formerly revoked * Except when a contrary intention is shown, when a will which has been partly revoked and afterward wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole. R.S.O. 1990, c. S.26, s. 19.
Operation of will as to interest left in testator * A conveyance of or other act relating to property that is the subject of a devise, bequest or other disposition, made or done after the making of a will, does not prevent operation of the will with respect to any estate or interest in the property that the testator had power to dispose of by will at the time of his or her death.
Rights in place of property devised * Except when a contrary intention appears by the will, where a testator at the time of his or her death, a) has a right, chose in action or equitable estate or interest that was created by a contract respecting a conveyance of, or other act relating to, property that was the subject of a devise or bequest, made before or after the making of a will; b) has a right to receive the proceeds of a policy of insurance covering loss of or damage to property that was the subject of a devise or bequest, whether the loss or damage occurred before or after the making of the will; c) has a right to receive compensation for the expropriation of property that was the subject of a devise or bequest, whether the expropriation occurred before or after the making of the will; or d) has a mortgage, charge or other security interest in property that was the subject of a devise or bequest, taken by the testator on the sale of such property, whether such mortgage, charge or other security interest was taken before or after the making of the will, * the devisee or donee of that property takes the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator. R.S.O. 1990, c. S.26, s. 20.
When revived will deemed made * When a will has been revived in the manner described in section 19, the will shall be deemed to have been made at the time at which it was so revived. R.S.O. 1990, c. S.26, s. 21.
Will to speak from death * Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to, a) the property of the testator; and b) the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20 (2). R.S.O. 1990, c. S.26, s. 22.
Disposition of property in void devise * Except when a contrary intention appears by the will, property or an interest therein that is comprised or intended to be comprised in a devise or bequest that fails or becomes void by reason of, a) the death of the devisee or donee in the lifetime of the testator; or b) the devise or bequest being disclaimed or being contrary to law or otherwise incapable of taking effect, * is included in the residuary devise or bequest, if any, contained in the will. R.S.O. 1990, c. S.26, s. 23.
Leasehold estates under devise of real property * Except when a contrary intention appears by the will, where a testator devises, a) his or her real property; b) his or her real property in a place mentioned in the will, or in the occupation of a person mentioned in the will; c) real property described in a general manner; or d) real property described in a manner that would include a leasehold estate if the testator had no freehold estate which could be described in the manner used, * the devise includes the leasehold estates of the testator or any of them to which the description extends, as well as freehold estates. R.S.O. 1990, c. S.26, s. 24.
Disposition of property over which testator has power to appoint
Real property * Except when a contrary intention appears by the will, a general devise of, a) the real property of the testator; b) the real property of the testator,
(i) in a place mentioned in the will, or
(ii) in the occupation of a person mentioned in the will; or c) real property described in a general manner, * includes any real property, or any real property to which the description extends, which he or she has power to appoint in any manner he or she thinks proper and operates as an execution of the power.
Personal property * Except when a contrary intention appears by the will, a bequest of, a) the personal property of the testator; or b) personal property described in a general manner, * includes any personal property, or any personal property to which the description extends, which he or she has power to appoint in any manner he or she thinks proper and operates as an execution of the power. R.S.O. 1990, c. S.26, s. 25.
Real property passing under devise without words of limitation * Except when a contrary intention appears by the will, where real property is devised to a person without words of limitation, the devise passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property. R.S.O. 1990, c. S.26, s. 26.
Meaning of “heir” in devise of property * Except when a contrary intention appears by the will, where property is devised or bequeathed to the “heir” or “heirs” of the testator or of another person, the words “heir” or “heirs” mean the person to whom the beneficial interest in the property would have gone under the law of Ontario if the testator or the other person died intestate. R.S.O. 1990, c. S.26, s. 27.
Import of words “die without issue”, etc. * Subject to subsection (2), in a devise or bequest of property, a) the words,
(i) “die without issue”,
(ii) “die without leaving issue”, or
(iii) “have no issue”; or b) other words importing either a want or failure of issue of a person in his or her lifetime or at the time of his or her death or an indefinite failure of his or her issue, * mean a want or failure of issue in the lifetime or at the time of death of that person, and do not mean an indefinite failure of his or her issue unless a contrary intention appears by the will.
Cases to which Part not to extend * This Part does not extend to cases where the words defined in subsection (1) import, a) if no issue described in a preceding gift be born; or b) if there be no issue who live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to that issue. R.S.O. 1990, c. S.26, s. 28.
Devise to trustee or executor * Except when there is devised to a trustee expressly or by implication an estate for a definite term of years absolute or determinable or an estate of freehold, a devise of real property to a trustee or executor passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property. R.S.O. 1990, c. S.26, s. 29.
When devise to trustee to pass whole estate beyond what is requisite for trust * Where real property is devised to a trustee without express limitation of the estate to be taken by the trustee and the beneficial interest in the real property or in the surplus rents and profits, a) is not given to a person for life; or b) is given to a person for life but the purpose of the trust may continue beyond his or her life, * the devise vests in the trustee the fee simple or the whole of any other legal estate that the testator had power to dispose of by will in the real property and not an estate determinable when the purposes of the trust are satisfied. R.S.O. 1990, c. S.26, s. 30.
Substitutional gifts * Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible, a) if that person had died immediately after the death of the testator; b) if that person had died intestate; c) if that person had died without debts; and d) if section 45 had not been passed. R.S.O. 1990, c. S.26, s. 31.

Primary liability of real property to satisfy mortgage * Where a person dies possessed of, or entitled to, or under a general power of appointment by his or her will disposes of, an interest in freehold or leasehold property which, at the time of his or her death, is subject to a mortgage, and the deceased has not, by will, deed or other document, signified a contrary or other intention, a) the interest is, as between the different persons claiming through the deceased, primarily liable for the payment or satisfaction of the mortgage debt; and b) every part of the interest, according to its value, bears a proportionate part of the mortgage debt on the whole interest.
Consequence of general direction to pay debts out of personalty or residue * A testator does not signify a contrary or other intention within subsection (1) by, a) a general direction for the payment of debts or of all the debts of the testator out of his or her personal estate, his or her residuary real or personal estate or his or her residuary real estate; or b) a charge of debts upon that estate, * unless he or she further signifies that intention by words expressly or by necessary implication referring to all or some part of the mortgage debt.
Saving of mortgagee’s rights * Nothing in this section affects a right of a person entitled to the mortgage debt to obtain payment or satisfaction either out of the other assets of the deceased or otherwise.
Conflict of Laws
Interpretation, ss. 36 to 41 * In sections 36 to 41, a) an interest in land includes a leasehold estate as well as a freehold estate in land, and any other estate or interest in land whether the estate or interest is real property or is personal property; b) an interest in movables includes an interest in a tangible or intangible thing other than land, and includes personal property other than an estate or interest in land; c) “internal law” in relation to any place excludes the choice of law rules of that place. R.S.O. 1990, c. S.26, s. 34.
Wills made in or out of Ontario, ss. 36 to 41 * Sections 36 to 41 apply to a will made either in or out of Ontario. R.S.O. 1990, c. S.26, s. 35.
Application of law, land and movables--- interests in land * The manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in land, are governed by the internal law of the place where the land is situated.

Re interests in movables * Subject to other provisions of this Part, the manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in movables, are governed by the internal law of the place where the testator was domiciled at the time of his or her death. R.S.O. 1990, c. S.26, s. 36.
Application of law, time of making will * As regards the manner and formalities of making a will of an interest in movables or in land, a will is valid and admissible to probate if at the time of its making it complied with the internal law of the place where, a) the will was made; b) the testator was then domiciled; c) the testator then had his or her habitual residence; or d) the testator then was a national if there was in that place one body of law governing the wills of nationals.
Idem
* As regards the manner and formalities of making a will of an interest in movables or in land, the following are properly made, a) a will made on board a vessel or aircraft of any description, if the making of the will conformed to the internal law in force in the place with which, having regard to its registration, if any, and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected; b) a will so far as it revokes a will which under sections 34 to 42 would be treated as properly made or revokes a provision which under those sections would be treated as comprised in a properly made will, if the making of the later will conformed to any law by reference to which the revoked will or provision would be treated as properly made; and c) a will so far as it exercises a power of appointment, if the making of the will conforms to the law governing the essential validity of the power. R.S.O. 1990, c. S.26, s. 37.
Change of domicile * A change of domicile of the testator occurring after a will is made does not render it invalid as regards the manner and formalities of its making or alter its construction. R.S.O. 1990, c. S.26, s. 38.
Construction of will, law of testator’s domicile when will made * Nothing in sections 34 to 42 precludes resort to the law of the place where the testator was domiciled at the time of making a will in aid of its construction as regards an interest in land or an interest in movables. R.S.O. 1990, c. S.26, s. 39.
Movables used in relation to land * Where the value of a thing that is movable consists mainly or entirely in its use in connection with a particular parcel of land by the owner or occupier of the land, the law that governs succession to the interest in the land governs succession to an interest in the thing under a will. (R.S.O. 1990, c. S.26, s. 40)
Application of law, general
Formalities
* Where, whether under sections 34 to 42 or not, a law in force outside Ontario is to be applied in relation to a will, any requirement of that law that, a) special formalities are to be observed by testators answering a particular description; or b) witnesses to the making of a will are to possess certain qualifications, * shall be treated, despite any rule of that law to the contrary, as a formal requirement only.
Effect of alteration of law * In determining for the purposes of sections 34 to 40 whether or not the making of a will conforms to a particular law, regard shall be had to the formal requirements of that law at the time the will was made, but account shall be taken of an alteration of law affecting wills made at that time if the alteration enables the will to be treated as properly made. R.S.O. 1990, c. S.26, s. 41.
DESIGNATION OF BENEFICIARIES OF INTEREST IN FUNDS OR PLANS
Designation of beneficiaries * A participant may designate a person to receive a benefit payable under a plan on the participant’s death, a) by an instrument signed by him or her or signed on his or her behalf by another person in his or her presence and by his or her direction; or b) by will, and may revoke the designation by either of those methods.
Idem
* A designation in a will is effective only if it relates expressly to a plan, either generally or specifically. R.S.O. 1990, c. S.26, s. 51.
Revocation and validity of designation
Revocation of designation * A revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically.
Idem
* Despite section 15, a later designation revokes an earlier designation, to the extent of any inconsistency.
Idem
* Revocation of a will revokes a designation in the will.
Where will invalid * A designation or revocation contained in an instrument purporting to be a will is not invalid by reason only of the fact that the instrument is invalid as a will.
Idem
* A designation in an instrument that purports to be but is not a valid will is revoked by an event that would have the effect of revoking the instrument if it had been a valid will.
Earlier designations not revived * Revocation of a designation does not revive an earlier designation.
Effective date * Despite section 22, a designation or revocation in a will is effective from the time when the will is signed. R.S.O. 1990, c. S.26, s. 52.
Payment and enforcement * Where a participant in a plan has designated a person to receive a benefit under the plan on the death of the participant, a) the person administering the plan is discharged on paying the benefit to the person designated under the latest designation made in accordance with the terms of the plan, in the absence of actual notice of a subsequent designation or revocation made under section 51 but not in accordance with the terms of the plan; and b) he person designated may enforce payment of the benefit payable to him under the plan but the person administering the plan may set up any defence that he could have set up against the participant or his or her personal representative. R.S.O. 1990, c. S.26, s. 53.
Regulations, Part III * The Lieutenant Governor in Council may make regulations prescribing classes of funds, trusts, schemes, contracts or arrangements for the purposes of this Part. 1994, c. 27, s. 63 (5).
Application of Part to plan * Where this Part is inconsistent with a plan, this Part applies, unless the inconsistency relates to a designation made or proposed to be made after the making of a benefit payment where the benefit payment would have been different if the designation had been made before the benefit payment, in which case the plan applies.
Exception
* This Part does not apply to a contract or to a designation of a beneficiary to which the Insurance Act applies. R.S.O. 1990, c. S.26, s. 54.
Application to retirement income funds * This Part applies to the designation of a beneficiary of a retirement income fund, whether the designation was made before or after the effective date, and even if the participant who made the designation died before the effective date.
Exception
* Despite subsection (1), this Part as it read immediately before the effective date continues to apply in a particular case if applying the Part as it read after the effective date would, a) change the result in a proceeding in which a judgment or final order was made before the effective date, even if the judgment or order is subject to appeal; or b) make a person liable to repay or account for retirement income fund proceeds received or paid by the person before the effective date.

Validity of mortgage * Where provision for the support of a dependant is ordered under this Part, a mortgage, charge or assignment of or with respect to such provision, made before the order of the court making such provision is entered, is invalid. R.S.O. 1990, c. S.26, s. 73.

Corrective Measures & Recommendations
Under Ontario law, a Will must be in written form and signed by the testator. Unless you make a holograph Will, you must sign your Will in front of two witnesses. Each witness must then sign the Will. A beneficiary or the spouse of a beneficiary should not witness a Will. Such witnesses will lose any benefit under the Will unless they obtain a Court Order allowing them to benefit. A) FORMAL VALIDITY
A valid will must meet five criteria, namely: * Requisite intention; * Capacity, both as regards age and mental capacity; * Knowledge and approval; * Due form; and * Due execution.
Simply put, in order for a will to be valid it must be written by a person who intends to make a will, who is of at least a certain age and of sound mind, and who has knowledge of, and approves of, the contents of the will. Further, the will must meet certain requirements as to form: for example, it must be in writing, and it must be properly executed. Failure to satisfy any of these five requirements will invalidate a purported will. The Wills Act includes requirements as to age, form and execution but, curiously, fails to address the requirements of intention, mental capacity, and knowledge and approval. If, as is often taken as a given, the legislation ought to provide instruction to testators, these omissions must be regarded as a significant shortcoming.
Not only does its incompleteness provide inadequate instruction to testators, but the fact that the Act only addresses half of the requirements for a valid will creates several potential ambiguities, as, for example, in respect to clauses 16(b) and (c). Those provisions state:

Revocation in general 16. A will or part of a will is not revoked except as provided in subsection 18(2) or
(b) by a later will valid under this Act; or
(c) by a later writing declaring an intention to revoke it and made in accordance with the provisions of this Act governing the making of a will; ....

Although a will or writing would not normally be valid unless it had been made with the requisite intention, mental capacity, and knowledge and approval, the wording of these clauses suggests that, as long as the testator is of the required age and due form and execution have been observed, i.e., as long as the will is “valid under this Act” or the writing is “made in accordance with the provisions of this Act” (“this Act” meaning The Wills Act in each case), an otherwise invalid will or writing could be effective to revoke a previous will.
The phrase “made in accordance with the provisions of this Act” is similarly used in subsection 19(1) of the Act (which deals with alterations to wills) and section 20 (dealing with revival of revoked wills) makes reference to a will or codicil “made in accordance with this Act”. In each case, the reference to “this Act” introduces the same ambiguities contained in clauses 16(b) and (c) of the Act, noted above.
The most effective way to deal with such ambiguities, and to ensure that The Wills Act provides useful guidance to testators, is to incorporate into the legislation the missing common law requirements for a valid will, so that it sets out all the requirements for validity. More particularly, the reform of The Wills Act should begin with the consolidation and expansion of the current requirements for a valid will (set out primarily in sections 3, 4 and 8 of the Act) into a single, comprehensive statement of the elemental requirements for a valid will.
RECOMMENDATION 1
The Wills Act should provide a complete, consolidated listing of the fundamental requirements for a valid will. B) EXECUTION REQUIREMENTS
The most important provision concerning the execution of wills is section 4 of the Act.
It reads: Signatures required
4 Subject to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in the presence and by the direction of the testator;
(b) the testator makes or acknowledges the signature in the presence of two or more witnesses present at the same time; and
(c) two or more of the witnesses attest and subscribe the will in the presence of the testator.
Each of these criteria is subject to multiple interpretations, and it is therefore not surprising that section 4 has generated considerable litigation. * Position of Testator’s Signature
Clause 4(a) requires a will to be signed by the testator or person signing on behalf of the testator “at its end”. It is not clear from the wording of the clause whether the signature must appear at the physical end of the will or whether it is sufficient if the testator’s (or proxy’s) signature appears at the temporal end of the will.
While there may be compelling reasons to prefer the customary placement of signatures at the physical end of a document, suggesting, as it does, that the signatory has knowledge of or agrees with the contents that precede his or her signature, a will should not be rendered invalid solely because the testator’s (or proxy’s) signature appears other than at the physical end of the will. Subsection 7(1), which states a will does not deal with a signature placed elsewhere than proximate to the physical end of the will.
... to be signed at its end if [the signing] ... is placed at, or after, or following, or under, or beside, or opposite to, the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will.

RECOMMENDATION 2
The Act should provide that a will is valid if it appears that the testator intended by his signature to give effect to the will. * Signature by Proxy
According to clause 4(a) of the Act, a will is not valid unless “it is signed by the testator or by some other person in the presence and by the direction of the testator”. As regards signature by a proxy, there has been some controversy about whether a proxy must sign the testator’s name, his or her own name, or both names.
RECOMMENDATION 3
The Act should provide that a person signing a will on behalf of a testator may sign the testator’s name, his or her own name, or both names. * Witnesses Attesting and Subscribing the Will
Clause 4(c) requires two or more witnesses to “attest and subscribe the will in the presence of the testator” which raises another issue: Does this mean that witnesses must have some knowledge about the contents of the will? The case law does not require the testator to inform the witnesses that the document on which the testator’s signature appears is a will. Requiring witnesses to “attest” the will may mean that they must bear witness to the will; that is to say, perhaps, that witnesses must be able to testify about the contents of the will or at least the unaltered or altered condition of the various pages comprising the will. This latter requirement would be fulfilled in cases where both the testator and witnesses sign or initial each page of a will. The signing or initialing of each page of a will by the testator and witnesses is not a universal practice in Ontario, and that many wills at their end simply bear the signatures of witnesses attesting the signature of the testator.
RECOMMENDATION 4
The Act should provide that a will is validly executed even if any or all of the witnesses did not know that it was a will.
If a testator signs or acknowledges his or her signature in the presence of one witness who then signs the will, and then acknowledges the signature in the presence of that witness and another witness who thereafter signs it, the will is invalid.15 Logically, although not expressly, section 4 requires the witnesses to sign the will after the testator has signed. Though such situations may arise infrequently, it does not make sense to require the first witness to sign the will again. We believe it should be sufficient for the first witness to acknowledge his or her signature to the second witness in the presence of the testator.
RECOMMENDATION 5
The Act should provide that, if the first witness signs the will in the presence of the testator only, he or she need only acknowledge his or her signature to the second witness in the presence of the testator. * Minors
According to section 8 of the Act, a will is only valid if the testator is at least 18 years of age at the time of making the will unless, at that time, the person is or has been married; is a member of the Canadian Armed Forces’ regular force; or is entitled to make a “privileged” will under section 5 of the Act.
The right to vote, the right to be on licensed premises and the right to marry without parental approval are among the rights secured at the age of 18. Other statutes set lower age limits in respect to other privileges and activities. Both the ages of 16 and 12 are operative in certain situations. Some examples, which set the age at 16, include: The Highway Traffic Act (driving an automobile), The Public Schools Act (leaving school), The Insurance Act (entering into a contract) and The Employment Standards Code (seeking employment). A minor who has attained the age of 16 should not be required to apply to the court to make a valid will and would therefore recommend that the age requirement be set at 16. If the will meets all of the other formal requirements of a valid will, that is: mental capacity, knowledge and approval, due form, and execution, we do not believe that lowering the age to 16 will prove problematic.
RECOMMENDATION 7
The age at which a person can make a valid will should be set at 16 years * Definition of Handwriting
Section 6, which concerns holograph wills, states in part “...[a] person may make a valid will wholly in the person’s own handwriting....” The Saskatchewan Wills Act was, for a time, unique in defining “handwriting” to include “(i) foot writing; and (ii) mouth writing. Such a definition makes it clear that persons who cannot use their hands to write may still, for example, make a valid holograph will.
RECOMMENDATION 8
“Handwriting” should be defined in the Act to include mouthwriting, footwriting, and similar kinds of writing. * Postscripts to Holograph Wills
Section 7 of the Act, discussed earlier, essentially states that, even if the testator’s signature may not technically be at the “end” of the will, the will is not rendered invalid if the signature is in that vicinity and it is apparent that the signature was intended to give effect to the will. This leniency with respect to the placement of the signature is qualified by subsection 7(3), which states that a signature that conforms to the Act nonetheless will not give effect to a disposition or direction underneath or following the signature, or that was inserted after the signature was made.
In 1968, the Court of Appeal held that the provisions of section 7 (including subsection (3)) did not apply to holograph wills and, in subsequent cases, the courts showed a willingness to validate writing that appeared beneath the signature of the testator on a handwritten letter and a conventional holograph will.
However, in 1983 the holograph will provision (section 6) was amended to require holograph wills, like other wills, to be signed “at the end”. Presumably, therefore, postscripts to holograph wills of the type recognized by the courts prior to the 1983 amendment would thereafter be invalid pursuant to subsection 7(3). As postscripts are not uncommon, the previous state of the law was salutary and was preferable to the present situation.
RECOMMENDATION 10
The Act should provide that a handwritten postscript on a holograph will apparently written at the same time as the will is not invalidated if it appears the testator intended the writing to be part of the will * Publication
All Canadian Wills Acts contain a section comparable to section 10 of Manitoba’s Act, which provides: Publication
10. A will made in accordance with this Act is valid without other publication.
Section 10 is derived from the Wills Act, 1837. Though it is not clear whether the section was intended to codify or supersede the common law, the Commission notes that, like publication, neither the dating of a will nor the inclusion of either an attestation or a testimonium clause is necessary for the formal validity of a will. This is not to say that the date and due attestation do not have to be proved, as the Queen’s Bench Rules35 and The Court of Queen’s Bench Surrogate Practice Act,36 respectively, require their proof before a will may be admitted to probate. Nevertheless, a will can be formally valid without either feature. Section 10 serves an instructional purpose and, for that reason, the Commission is persuaded that it should be retained. Since, like publication, neither the dating of a will nor the inclusion of an attestation or testimonium clause is necessary for the formal validity of a will, for the sake of consistency and the better to serve its instructional goals, the Commission believes that it would be salutary for section 10 to make reference to these latter elements as well.
RECOMMENDATION 11
The Act should provide that, subject to the requirements of The Queen’s Bench
Rules and The Court of Queen’s Bench Surrogate Practice Act, a will need not be dated and need not include either a testimonium clause or an attestation clause. C) INCOMPETENCY OF WITNESSES
Section 11 of the Act provides that a will is not invalid merely because one of the witnesses either was incompetent (as a witness) at the time the will was executed, or subsequently became incompetent. Though in today’s context the section may seem somewhat alarming, stating as it does that a will attested by an incompetent witness is not invalid on that basis alone, its inclusion in the Wills Act, 1837 made sense. Historically, there were numerous bases on which a witness could be found to be incompetent, some more serious than others. However, over time most of those numerous bases have been removed through legislative reform, so that today witness incompetency is essentially based solely upon mental impairment and age. Section 11 is surely an anachronism insofar as it maintains the validity of a will attested by a witness who lacks the required mental capacity, or who is too young, to be a witness. The Commission is of the view that section 11 ought to be revised to reflect the present day understanding of witness incompetency. The competence of a witness is relevant only at the time of the execution of the will; subsequent incompetence is irrelevant as long as it can be proved that, at the time of execution, the witness was competent to be a witness.
RECOMMENDATION 12
The Act should provide that a will is invalid if a person who attested it was incompetent as a witness at the time of attestation, but not if the person became incompetent only after attesting it
Section 11 would also be more instructive if it expressly indicated who can be a witness.
It seems to the Commission that a person who is competent to make a will should also be able to attest a will. As well, section 11 could usefully codify the common law rule that a blind person cannot be a witness to a will.39 Lastly, because of the potential for abuse, the Commission believes that section 11 ought to include a provision overruling the 19th century case law which allows a person signing a will on behalf of a testator to attest the will as well.
RECOMMENDATION 13
The Act should provide that any person competent to make a will, other than a person unable to see sufficiently to attest the testator’s signature and a person who signs a will on behalf of the testator, can act as a witness to a will. D) REVOCATION BY MARRIAGE
By virtue of sections 16(a) and 17 of the Act, except in limited circumstances, the marriage of a testator automatically revokes an existing will. These sections provide:
Revocation in general
16 A will or part of a will is not revoked except ... (a) subject to section 17, by the marriage of the testator;.... Revocation by marriage
17 A will is revoked by the marriage of the testator except where
(a) there is a declaration in the will that it is made in contemplation of the marriage; or (b) the will is made in exercise of a power of appointment of real or personal property which would not, in default of the appointment, pass to the heir, executor, or administrator of the testator or to the persons entitled to the estate of the testator if the testator died intestate.
It is arguable that the automatic revocation of a will by marriage no longer serves its original purpose, and that clause 16(a) could therefore be repealed. The originating provision was apparently included in the Wills Act, 183741 in order to protect the children of a marriage, as opposed to the spouse who already had adequate protection through dower, curtsey (equivalent to today’s Marital Property Act), and marriage settlements.42 However, since children do not succeed under The Intestate Succession Act43 (except in limited circumstances), a child of a testator would not stand to benefit from the automatic revocation of the will upon marriage in any event, arguably frustrating the original purpose of clause 16(a). * Declaration
According to clause 17(a), an existing will is revoked by the marriage of the testator except where “there is a declaration in the will that it is made in contemplation of the marriage”. Regrettably, it is not clear from the provision whether an actual declaration that the will is made in contemplation of marriage is required, or whether the requirement may be satisfied by an expression of the contemplation from which the required declaration can be inferred.
RECOMMENDATION 14
The Act should provide that a will is not revoked by the marriage of the testator where it appears from the will, or from extrinsic evidence, that the will was made in contemplation of the marriage. * Particular Gifts
A second noteworthy problem with clause 17(a) concerns particular gifts in contemplation of marriage. According to that clause, a will must be made in contemplation of marriage in order to avoid the automatic revocation of the entire will.62 This means that, even if it were clear from the terms of a will that a particular bequest was being made in contemplation of marriage, unless the will included a declaration that the entire will was being made in contemplation of marriage, the will would be automatically revoked. This reasoning and recommends that clause 17(a) be amended to refer not only to a will, but part of a will, made in contemplation of marriage.
RECOMMENDATION 15
The Act should provide that a will is not revoked by the marriage of the testator where either the will or a part of the will was made in contemplation of the marriage. E) OBLITERATION, CANCELLATION, INTERLINEATION
Clauses 16(b), (c) and (d) of the Ontario Act state:
Revocation in general
16 A will or part of a will is not revoked except as provided in subsection 8(2) or
...
(b) by a later will valid under this Act, or
(c) by a later writing declaring an intention to revoke it and made in accordance with the provisions of this Act governing the making of a will; or
(d) by burning, tearing or otherwise destroying it ....
Notably, clause 16(d) of Ontario Act and section 20 of the Wills Act, 1837 both permit revocation by “burning, tearing, or otherwise destroying” the will, whereas the original provision in The Statute of Frauds, 1677 allowed for revocation by “burning, cancelling, tearing or obliterating”. According to clause 16(d) therefore, merely writing “cancelled” or “revoked” or drawing a line or an “X” though a will or part of a will no longer automatically revokes the will. Such acts may be revocatory if executed, pursuant to clause 16(c), although at least one court has held them to be governed by section 19.68 Subsections 19(1) and (2) provide as follows:
Making alterations
19(1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Act governing the making of a will, the alteration has no effect except to invalidate words or meanings that it renders no longer apparent

Execution of alterations
19(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or (b) at the foot or end of, or opposite to, a memorandum referring to the alteration and written in some part of the will.
Like section 20 of the Wills Act, 1837, clause 16(d) of Ontario’s Act no longer permits revocation by obliteration, a common means of attempted revocation. Unless an obliteration actually “destroys” the will (or a part thereof), which will seldom be the case, it will not be revocatory pursuant to clause 16(d), as that clause only recognizes revocation by “burning, tearing, or otherwise destroying”. Most obliterations, such as those effected by pen or pencil, or by pasting or taping a piece of paper over a part of the will, are not actually destructive. Currently then, revocation by obliteration may be practically impossible, except pursuant to subsection 19(1).
This is not the case under the Wills Act, 1837. While obliterating was not included as a means of revocation under section 20 of that Act, it was continued in section 21, as follows:
No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as herein-before is required for the execution of the will; but the will, with such alteration as part hereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.
While the Wills Act, 1837 continues to permit obliteration as an effective discrete act of revocation, under subsection 19(1) of Manitoba’s Act, obliteration is only revocatory if it was done in an invalid attempt to alter a part of a will by interlineation,70 in which case the obliteration is effective insofar as it renders “... words or meanings ... no longer apparent”. There are thus two different rules for revocation by obliteration: one requiring actual destruction (pursuant to clause 16(d)) and the other simply requiring the obliteration to render words or meanings no longer apparent (pursuant to subsection 19(1)). Section 19 of the Act raises other issues. First, it only concerns alterations by interlineation, as opposed to alterations by codicil. That is to say, its applicability is limited to alterations made in the text of the will; it does not govern alterations made wholly in the margin on the back of a page, underneath the signature, on a separate piece of paper, or in a conventional codicil. This is evident by the use of the preposition “in”, as opposed to “to” in the phrase “... unless an alteration that is made in a will ....” subsection 19(1) would be more instructive if it clarified that it only concerns alterations made by interlineation.
Secondly, pursuant to subsection 19(2), it is the form of the will or codicil, and not the form of the alteration that determines how the alteration must be executed. If the alteration is to a non-holograph will, it must be signed by both the testator and witnesses; if the alteration is to a holograph will, the testator’s signature is all that is required. Basing the execution requirements on the form of will makes little sense, as it renders an alteration of a non-holograph will in the testator’s handwriting invalid if it is executed by only the testator and, conversely, a typewritten alteration of a holograph will is valid even if it is only executed by the testator.
The Act permits the making of holograph wills and codicils, signed by only the testator without any witnesses. One of the reasons for not requiring witnesses to holograph wills is that the requirement that the will be in the testator’s handwriting is regarded as a sufficient safeguard against fraud. Why then require witnesses for interlineation in non-holograph wills handwritten by the testator? Conversely, not requiring witnesses to a typewritten interlineation of a holograph will or codicil (albeit an uncommon form of interlineation to such documents) is, given the potential for fraud, difficult to defend. As well, the requirement for witnesses to interlineation handwritten by the testator to non-holograph wills and codicils may be tantamount to laying a trap for lay persons who know about holograph wills and naturally extend that knowledge to handwritten interlineation of non-holograph wills and codicils. (While it is true that such interlineation can be validated pursuant to section 23 of the Act, that process is time-consuming and imposes an unnecessary cost on the estate.)
RECOMMENDATION 16
The Act should provide that no obliteration, interlineation, cancellation by the writing of words of cancellation or by drawing lines across a will, or any part of a will, made after execution of a will, is valid or has any effect except to the extent that the words or effect of the will before the alteration are not apparent unless the alteration is executed in accordance with this Act.
RECOMMENDATION 17
The Act should provide that the alteration is properly executed if the signature of the testator and the subscription of the witnesses are made:
(a) in the margin or in some part of the will opposite or near to the alteration; or
(b) at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or in some other part of the will.
RECOMMENDATION 18
The Act should provide that a will may be obliterated, interlineated, or cancelled by the writing of words of cancellation or by drawing lines across a will or any part of a will by a testator without any requirement as to the presence of or attestation or signature by a witness or any further formality if the alteration is wholly in the handwriting of, and signed by, the testator. F) EFFECT OF DIVORCE
The revocatory effect of divorce on an existing will has been the subject of several law reform reports. As a result of the recommendations contained in that Report, section 36.1 was enacted in 1977, which was replaced in 1980 by current subsection 18(2). Subsections 18(2) and 18(3) provide:
Effect of divorce 18(2) where in a will
(a) a devise or bequest of a beneficial interest in property is made to a spouse of the testator; or (b) the spouse of the testator is appointed executor or trustee; or
(c) a general or special power of appointment is conferred upon a spouse of the testator; and after the making of the will and before the death of the testator, the testator’s marriage to that spouse is terminated by a decree absolute of divorce or is found to be void or declared a nullity by a court in a proceeding to which the testator is a party, then, unless a contrary intention appears in the will, the devise, bequest, appointment or power is revoked and the will shall be construed as if the spouse had predeceased the testator.
Definition of “spouse” 18(3) In subsection (2) “spouse” includes the person purported or thought by the testator to be the spouse of the testator.
Though subsection 18(2) differs from the provision that was introduced in several respects, the most significant in this context is that, while the original provision only deemed a spouse to have predeceased the testator, subsection 18(2) goes further and revokes any devises, bequests, appointments, and powers.
In 1977, the Ontario Law Reform Commission reviewed five reform proposals, including the revocation of gifts to an ex-spouse, and deeming an ex-spouse to have predeceased the testator. Although that Commission recommended only the latter proposal, both proposals were included in subsection 17(2) of The Succession Law Reform Act, 1977. Specifically, where the will provides for a gift to a spouse with a gift-over in the event that the spouse predeceases the testator, it is not clear whether only the initial gift is revoked by the legislation, or whether both it and the gift-over are revoked.
Subsection 18(2) is likewise potentially confusing. An obvious solution would be the repeal of the provision revoking all devises, bequests, appointment, and powers.
RECOMMENDATION 19
The Act should provide that, after the making of a will by a testator and before his or her death, the marriage of the testator is terminated by a divorce judgment or the marriage is found to be void or declared a nullity by a court in a proceeding to which he or she is a party, then, unless a contrary intention appears in the will, the will shall be construed as if the spouse had predeceased the testator.
Subsection 18(2) gives rise to several other matters worthy of consideration. First, it does not deal with the situation where the will gives a life estate pur autre vie (one which terminates on the death of someone other than the beneficiary) with the spouse as the cestui que vie (person on whose death the life estate will terminate). The Law Reform Commission of British Columbia briefly considered and rejected the idea of including life estates pur autre vie as it considered that a testator might not want such a life estate to be defeated.83 We take a different view, believing it more likely that, in such circumstances, a testator would wish to revoke the life estate and think it would be useful if the legislation addressed this issue.
RECOMMENDATION 20
The Act should stipulate that a life estate pur autre vie with a spouse as a cestui que vie will not survive the termination of a marriage, unless a contrary intention appears in the will.
Second, subsection 18(2) does not deal with the more common life insurance and pension proceeds beneficiary designations made in wills. Regarding life insurance beneficiary designations, at one time The Insurance Act84 contained a provision similar to subsection 18(2), but that provision was repealed many years ago.85 Presently, the only potentially relevant provision in The Insurance Act on this point is subsection 169(3), which provides:
Revocation 169(3) Where a designation is contained in a will, if subsequently the will is revoked by operation of law or otherwise, the designation is thereby revoked.
Subsection 18(2), however, does not revoke a will, meaning that subsection 169(3) of The insurance Act is inapplicable, and an insurance proceeds designation does not otherwise appear to fall within clause 18(2)(a), and certainly not (b) or (c). Thus, a life insurance beneficiary designation contained in a will in favour of a spouse will, in fact, survive a divorce.
As for the impact of divorce on beneficiary designations made in a will with respect to pension proceeds, there is no relevant legislation whatsoever. It seems to the Commission that the legislation is remiss in not addressing the consequences of divorce on these kinds of beneficiary designations made in wills, and further, that it would be appropriate to treat such designations in favour of a spouse in the same manner as other bequests on divorce.
RECOMMENDATION 21
The Act should treat beneficiary designations in favour of a spouse, whether designations of insurance proceeds or pension proceeds, in the same manner as other devises or bequests.
Subsection 18(2) also fails to provide for the possibility of divorced spouses subsequently remarrying each other. A precedent for such a provision exists in the United States, specifically in section 2-508 of the Uniform Probate Code, which states: ... If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse ....
A similar provision would be useful in preventing unnecessary disruption of testamentary preparations in the event of reconciliation by divorced partners.
RECOMMENDATION 22
The provisions of the Act dealing with revocation of a will upon marriage should not apply in the event of a subsequent marriage to the former spouse.
Finally, subsection 18(2) refers to a “decree absolute” of divorce. As decrees nisi and absolute are no longer issued in Manitoba,87 the legislation should be updated to refer simply to “a divorce”.
RECOMMENDATION 23
References to “a decree absolute of divorce” should be replaced with a reference to “a divorce judgment”.

G) REVIVAL
Section 20 of the Act deals with the revival of a will. The opening statement provides, in part: Revival
20(1) A will or part of a will that has been in any manner revoked is revived only ....
Although the words “in any manner revoked” suggest that the section contemplates the revival of any revoked will, regardless of the manner of revocation, the courts have held that subsection 20(1) does not apply to a will that has been revoked by destruction:
... it has been decided by no less than three very remarkable cases, that if the codicil refer to a will with the intention of reviving it, and it turn out that such a will has been entirely burnt or destroyed by the testator animo revocandi, the codicil cannot effect its revival. Assuming, then, upon these authorities, that a codicil may, by referring in adequate terms to a revoked will, revive that will if it be in existence....
The rationale for this decision is based on the requirement of writing; if a will has been destroyed, there is no writing in existence that can again become a will.89 That reasoning may have been understandable in the 19th century when copies of wills may have been rare, but it is far less compelling today when there will often be writing of one sort or another in existence.
It is also worth noting that the case law on this point is at odds with the common law relating to missing wills, which allows such wills to be reconstructed from whatever evidence is available, including oral or affidavit evidence of someone who simply saw the will. Clearly the case law is anachronistic, insofar as it does not allow for the revival of a will that has been revoked by destruction. Accordingly, it believes that subsection 20(1) of the Act should be amended to explicitly permit the revival of a will that has been revoked through destruction.
RECOMMENDATION 24
The Act should explicitly permit the revival of wills that have been revoked by destruction if copies or adequate evidence is available to the court to reconstruct the will.

H) ADEMPTION
Under the common law, if the subject matter of a specific bequest or devise is no longer an asset of the testator’s estate, the gift “is adeemed”, i.e. fails. Where property has been disposed of, but the transaction has not yet been completed so that the proceeds of disposition remain payable at the testator’s death, the disposition is treated like an ademption.
Sections 21 and 24 of the Act deal with the question of ademption:
Subsequent conveyance
21 A conveyance of, or other act relating to, real or personal property disposed of in a will made or done after the making of a will, does not prevent operation of the will with respect to any estate or interest in the property that the testator had power to dispose of by will at the time of the death of the testator. Property disposed of by committee or substitute decision maker
24(1) Where the committee for a person, or the substitute decision maker for property for a person appointed under The Vulnerable Persons Living with a Mental Disability Act sells, mortgages, exchanges or otherwise disposes of any property, real or personal, of the person, the devisees, legatees and heirs of that person have, on his death, the same interest and rights in the proceeds of the sale, mortgage, exchange or disposition by the committee as they would have had in the property if it had not been sold, mortgaged, exchanged or disposed of and the proceeds, or any balance thereof, shall be deemed to be of the same nature and character as the property sold, mortgaged, exchanged or disposed of.
Application to Public Trustee
24(2) Subsection (1) applies where the Public Trustee acts as committee for a person or as substitute decision maker for property for a person.
Section 21 will apply, for example, to a devise of a fee simple estate in a parcel of land which the testator subsequently leases or mortgages, or in which the testator grants a life estate that is extant at his or her death, i.e., the devise will still be effective to transfer the fee simple estate, subject to the lease, mortgage, or life estate.
The legislation in Ontario (and, to a lesser extent that of Alberta, Saskatchewan, New
Brunswick, the Northwest Territories and Nunavut)95 goes further than section 21 and prevents ademption in the following situations:
(a) when the testator makes an agreement to sell the devised parcel and dies before the agreement is fully implemented;
(b) when the testator has sold a parcel of land or chattel that was specifically gifted and taken a mortgage back;
(c) when specific gift assets have been insured and are destroyed before (or at the same time) as the testator’s death;
(d) when the land comprising a specific devise is expropriated and the compensation payable has not yet been determined.
In its 1989 Report, the Law Reform Commission of British Columbia considered ademption, equitable conversion and the reform legislation of Alberta, Saskatchewan, Ontario, New Brunswick and the Northwest Territories. The Commission concluded that the reform legislation, limited as it is to abolishing equitable conversion, does not ameliorate the law of ademption respecting entitlement to proceeds of disposition received by the testator, and stated: ... that the current law of ademption is based on two presumptions:
1. A testator who makes a specific gift does not intend to confer a general economic benefit on the beneficiary; and 2. A testator intends to revoke the gift if the subject matter of the gift is disposed of before his death.

RECOMMENDATION 25
The Act should provide that, except when a contrary intention appears by the will, where a testator (or his or her estate) before, at the time of, or after his or her death
(a) made an agreement to dispose of specifically gifted property but the agreement was not fully implemented at the time of death;
(b) sold specifically gifted property and has taken back a mortgage, charge or other security;
(c) has a right to receive insurance proceeds covering loss of or damage to specifically gifted property;
(d) has a right to receive compensation for the expropriation of specifically gifted property; the devisee or donee of that property is entitled to the proceeds of disposition, mortgage, charge or security interest, insurance proceeds or compensation.

I) MORTGAGED LAND
Section 36 of the Act provides, essentially, that a gift of land in a will carries with it liability for any mortgage debt to which the land is subject, unless, of course, the testator has indicated a contrary intention. At common law, gifts of personal property are not so encumbered; any debts associated with personal property are payable by the estate, in the absence of contrary directions from the testator.
In our view, there is no longer any defensible reason (if ever there was one) to distinguish between real and personal property as regards encumbrances. Although the funds raised by mortgaging land are typically used for the purchase of that land, or for its improvement, it is also the case that personal property is often encumbered for the same or similar purposes (a car loan being a typical example). The rationale for making a devisee of land liable for the debts associated with that land therefore would appear to apply equally strongly to persons receiving gifts of personal property.

RECOMMENDATION 34
Section 36 of the Act should apply to both real and personal property.
Section 36 is problematic in yet another respect: the definition of “mortgage” in subsection (4) is extremely broad, not limited to mortgages or charges related to acquisition or use of the property.
“Mortgage” defined
36(4) In this section “mortgage” includes an equitable mortgage, and any charge whatsoever, whether legal, equitable, statutory or of other nature, including a lien or claim upon freehold or leasehold property for unpaid purchase money, and “mortgage debt” has a meaning similarly extended.
Thus, by virtue of this definition, a devisee of land can be held responsible for debts that have absolutely nothing to do with the land itself. For example, “mortgage” is explicitly defined to include a lien, which can be attached to land to facilitate the collection of “debts” that are unrelated to the land and which otherwise one would naturally think would be debts to be satisfied by the estate. This result is neither equitable nor reasonable, in our opinion. Accordingly, we recommend that the Act provide that the only debts that are not payable out of the testator’s estate are those that are related to the acquisition, use, and improvement of the land.

RECOMMENDATION 35
The definition of “mortgage” in the Act should include only mortgages and charges related to the acquisition, use, or improvement of the particular land

Conclusion & Lessons learned:
It's unfortunate how many people believe that estate planning is only for wealthy people. People at all economic levels benefit from an estate plan. Upon death, an estate plan legally protects and distributes property based on your wishes and the needs of your family and/or survivors with as little tax as possible. I have learned a will is the most practical first step in estate planning; it makes clear how you want your property to be distributed after you die. Writing a will can be as simple as typing out how you want your assets to be transferred to loved ones or charitable organizations after your death. If you don't have a will when you die, your estate will be handled in probate, and your property could be distributed differently than what you would like.
I recommend getting legal advice when writing a will, particularly when it comes to understanding all the rules of the estate disposition process in your province. Some provinces, for instance, have community-property laws that entitle your surviving spouse to keep half of your wealth after you die no matter what percentage you leave him or her. Fees for the execution of a will vary according to its complexity.
In conclusion, making a will is a process that can save much hardship and confusion for survivors upon death. While thought and care is required to do it properly, it is a necessary step to ensure that your estate is settled according to your wishes.

Mostapha Hijazi
100803200

References:

1. DuPlessis, Dorothy. Canadian Business and the Law. Toronto: Nelson Education, 2010.
Levasseur, Gilles. Lectures notes. Fall 2013

Table of Contents

I) Executive Summary | | II) Introduction | | III) Description of Clauses | | IV) Application of all Legal Principles covered in class | | V) Corrective Measures & Recommendations | | VI) Lessons Learned and Conclusion VII) References | |

Business Law Term Paper
Evaluation of a will- clause by clause
BUSI 2601
Mostapha Hijazi
100803200
April 3rd, 2014