Gold’s Legal Minute*GLM*

By Allan Gold, lawyer Montreal and elder law attorney

Vol. 16, #9 – October 31, 2025

OPENING

A Last Will and Testament (also known as “will”) is such a beautiful thing, but not necessarily. A few 2025 cases caught my eye: Brink v. Reeves Estate, 2025 BCCA 295, Madhani v. Fast, 2025 ONSC 4100.  While they’re from other provinces, and don’t apply ‘per se’ to Quebec, we can learn from them. They’re interesting especially taking into account the ‘will sea change’ in Ontario starting in 2022.  As a lawyer Montreal and elder law attorney, I want to share.

* Fairness is not the overriding objective of courts. While ‘all’s fair in love and war,’ a will doesn’t have to be fair. Indeed, the court refused to ,make ”that will fairer in hindsight.”

* Unsigned Electronic Draft Ineffective. The saying “close but no cigar”applies to someone amending, modifying, or updating his/her will. Indeed, a draft codicil or new will is not worth the paper it’s written on.

STARTING POINT

Knowing what terms mean is the correct place to start.

Definitions

“Last Will and Testament” – It’s a “legal document that expresses a person’s (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution.” 1

ONTARIO BACKGROUND

There’s a new law in Ontario. For deaths post Jan. 1, 2022, courts have the power to validate an improperly executed document if it “sets out the testamentary intentions of a deceased, or an intention of a deceased to revoke, alter or revive a will.”

“Court-ordered validity

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act 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 Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made. 2021, c. 4, Sched. 9, s. 5.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000. 2021, c. 4, Sched. 9, s. 5″

Jurisprudence 

Cruz v. Public Guardian and Trustee, 2023 ONSC 3629

Mr. Justice Myers wrote:

“[1] The deceased prepared his own will. It is clearly drafted as a will. It expresses his testamentary intention in clear terms. But he did not quite get the concept of “witnessing” a signature.

…

[9] I am satisfied that this document “records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”. Estate of Young, 2015 BCSC 182 (CanLII), at para. 35. That’s all that it does. It purports to be a will. It is signed in the deceased’s hand. The deceased just blew the formalities. Fixing this type of mistake is precisely what s. 21.1 seems to be for.”

Kertesz v. Kertesz, 2023 ONSC 7055

Mr. Justice Myers wrote:

“[1] The longer note written by Simon Kertesz before he passed away was plainly intended to be his will. It
shows on its face that he had testamentary capacity despite the suspicious circumstances of his death. The
documents itself shows that Mr. Kertesz understood the nature of a will. He understood the scope of his assets.
He understood the pool of possible beneficiaries. He understood how each of the foregoing interrelated.
[2] The document is also a fixed and final expression of Mr. Kertesz’s dispositive intentions. The
circumstances again make that clear as Mr. Kertesz sadly knew that his death was imminent.
[3] The chain of possession of the will document coupled with the lay witness recognition of Mr. Kertesz’s
handwriting leave no real doubt that the document was his and is authentic.
[4] Accordingly, I find this an appropriate case the exercise the authority set out in s. 21.1 of the SLRA to
recognize the document as a valid will despite the lack of a signature.”

QUEBEC STATUTES

On topic, the critical provisions of law are the following.

Civil Code of Québec chapter CCQ-1991

“703. Toute personne ayant la capacité requise peut, par testament, régler autrement que ne le fait la loi la dévolution, à sa mort, de tout ou partie de ses biens. 1991, c. 64, a. 703.

704. Le testament est un acte juridique unilatéral, révocable, établi dans l’une des formes prévues par la loi, par lequel le testateur dispose, par libéralité, de tout ou partie de ses biens, pour n’avoir effet qu’à son décès.

Il ne peut être fait conjointement par deux ou plusieurs personnes. 1991, c. 64, a. 704.

…

712. On ne peut tester que par testament notarié, olographe ou devant témoins.

1991, c. 64, a. 712.

713. Les formalités auxquelles les divers testaments sont assujettis doivent être observées, à peine de nullité.

Néanmoins, le testament fait sous une forme donnée et qui ne satisfait pas aux exigences de cette forme vaut comme testament fait sous une autre forme, s’il en respecte les conditions de validité. 1991, c. 64, a. 713.”

ANALYSIS

Brink v. Reeves Estate, 2025 BCCA 295

This is a judgment of the Court of Appeal for British Columbia.

As to the facts, there was a woman who died in 1984. She added a clause to her will permitting her husband to stay in the home until his death after which, children from a previous relationship would be entitled to her half of the value of the house. On the death of husband in 2021, a dispute arose as to whether the value was at the time of the addition of the clause when the house was worth $50,000 (subject to mortgage) or at death of husband when it was worth $1.2 million,

With the concurrence of her two colleagues on the bench, The Honourable Madam Justice Fenlon wrote the reasons. The heart of the judgment is reproduced as follows.

“[41] I would not accede to this ground of appeal. The judge was alive to the appellants’ submissions and the unfairness they perceive in the will being interpreted in this way. But the judge found this was the interpretation consistent with the

expression of Diane’s intentions in the will. The judge “put herself in the testator’s armchair” and found that interpretation to be a reasonable one in the circumstances known to Diane as she lay in hospital, critically ill, and striving to do the right thing for both her children and her husband. In this regard, the judge said:

‘[37] At the time of Diane’s death, she and Robert had owned the Property for only about two years. If she had done nothing, the whole title would have passed to Robert. Instead, one week before her death she severed her joint tenancy and executed the Will disposing of her interests. It is reasonable to assume she intended to ensure that her (mostly adult) children from a different relationship received something from her modest estate. It is also reasonable to assume she balanced the interests of her spouse and those children. Her spouse remained solely responsible for all of the taxes, insurance, repairs and upkeep of the Property. She ensured the respondents would not have to make any of those payments and also would not benefit from any improvements to the Property. Her Will also protected her children’s interest whether the equity in the Property went up or down by fixing the valuation date of the Property interest and the indebtedness owing on the mortgage. Although the parties do not agree upon what date it is, it is common ground between the parties that the clause contemplates the same date for valuation and determination of indebtedness. That means that on the respondents’ construction, the indebtedness could theoretically have increased or decreased in the intervening period.’

[Emphasis added.]

[42] It must be remembered that when Diane Brink made her will in 1984, she could not have foreseen the astronomical increase in the value of real estate that was to come. Nor perhaps could she have anticipated that Robert would choose to remain in the Property throughout his long life. If she had known these things, she might have drafted the will differently.

[43] I recognize that there will be for the appellants little solace in these words. They will feel the sting of unfairness in the construction that the Court has placed on their mother’s will. But the task of the court is not to rewrite a will to make it fairer in the present circumstances. It is to identify and respect the wishes of the testator as expressed at the time the will was drawn. In this regard I must respectfully conclude that the judge made no error in carrying out the task before her.

It’s the courts’ job to determine what was intended when a will is written, not to make that will fairer in hindsight, the Court of Appeal”

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“The art of life lies in a constant readjustment to our surroundings.” – Kakuzo Okakura

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Madhani v. Fast, 2025 ONSC 4100:

This is a judgment of the Ontario Superior Court.  As to the facts, this is a case of a man who prepared a new will but died on the day he was scheduled to sign it. He died in November 2023 after finishing revisions to his will.the morning, before the appointment with his lawyer.

A.A. SANFILIPPO J uled as follows

“[59] Expressions of intentions as to how a testator would like their property to be disposed of after death are not testamentary intentions. Expressions of intentions, alone, are insufficient to ground a valid will. I have no doubt that Jamshed intended to change his 2021 Will. The Applicant has presented ample evidence of Jamshed’s expression of intention. However, the Applicant did not establish, on a balance of probabilities, that the 2023 Draft Will contains a deliberate or fixed and final expression by Jamshed, at the time that the document was made, of the disposal of his property on death. On this finding, the relief sought in this Application cannot be granted.

V. DISPOSITION

[60] A Judgment shall issue that the document entitled “Last Will and Testament of me,Jamshed Mavalwala”, unsigned but dated November 10, 2023, is not valid and effective as a testamentary document.”

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“Don’t wait. The time will never be just right.” — Napoleon Hill.

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COMMENTARY

The essence of the ruling from the Brink v. Reeves Estate is that it’s the courts’ job to determine what was intended when a will is written, not to make that will fairer in hindsight.

The essence of the ruling from the Madhani v. Fast case is that an electronic draft will cannot be considered valid. It’s noteworthy that British Columbia is one province which permits electronic wills.

So what’s the take-a-way? From these court judgments, I conclude as follows.

• When you’ve decided to change your will, don’t procrastinate! Instead – do it without delay! Even the process of working on drafts might be too long.
• Nearly  everyone has personal computers and word processing. It’s a great tool. But when it comes to amending, modifying, or updating a will,  …just in case….it might be best to hand write a codicil, date and sign it!
• If and when you’ve decided to be fair and have an even split between your legatees (heirs), and you have appreciable possessions like real estate, financial assets (e.g., stocks, bonds, bank deposits), it’s not a good idea to divide by allocating one property to one legatee (heir) and the other property to another legatee (heir). Instead – to achieve equality, it’s best to apply the same percentage to each legatee (heir) of that appreciable asset or the entire residue of the estate.

NOTEWORTHY

Allan J Gold is now featured in FeedSpot Top 90 Canada Law Blogs. Check it out at https://bloggers.feedspot.com/canada_law_blogs/

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“Estate planning is an important and everlasting gift you can give your family. And setting up a smooth inheritance isn’t as hard as you might think.” — Suze Orman.

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CONCLUSION

If there’s a will, there’s a way! But as a lawyer Montreal and elder law attorney, I say,

• “If you want to get the will right, you need the right means of calculation, one which will stand the test of time.”
• “Rushing through a task can lead to mistakes. That’s true. But sometimes speed is the difference between getting it right or not. Such is the case when amending, modifying, or updating a will. Indeed in that instance, haste might make right!”**

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NOTICE – CAUTION –DISCLAIMER. The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.

1. https://en.wikipedia.org/wiki/Will_and_testament

2. https://www.investopedia.com/terms/c/codicil.asp
3. https://www.law.cornell.edu/wex/heir
4. https://www.law.cornell.edu/wex/legatee

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