The Mystery of the Missing Will(s)

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE: 

Estate administration can be contentious and complex.  Family dynamics and emotions often ignite and drive disputes and litigation between executors, estate beneficiaries and others even where the true last wishes of a deceased relative would appear to be clearly stated.  There are many formal requirements for making a valid will in Ontario.  A failure to fulfill even one of those requirements can provide an opening for a will challenge and costly litigation.

In a case decided by the Court of Appeal, a dispute over the future of an estate farm property boiled down to legal formalities and a scenario that could make for a mystery novel (or at least a short story).  The deceased farm owner allegedly signed two versions of the same will, only one of which was witnessed, and neither of which was available in original form at trial.  By the time of the appeal, the original copy of one of the wills had been found, but it was not enough to convince the Court of Appeal that either will should be accepted.  Instead, the rules of intestacy (where a deceased has no valid will) were to apply.

The farm owner was a bachelor with no children; he died in 2015.  He had executed a will in the 1990s naming his parents as sole beneficiaries of his estate, but they had both pre-deceased him.  Absent a subsequent valid will, the farm owner’s estate would pass to his brother (50%) and the two daughters of his deceased sister (50% jointly) in accordance with the provisions of the Succession Law Reform Act: “Where a person dies intestate in respect of property and there is no surviving spouse, issue or parent, the property shall be distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distributed among his or her children equally.”

For two decades prior to his death, the farm owner had been assisted in his farming operation by a long-time friend.  In 2009, he named the friend as his attorney for property and personal care.  In 2013, the legal assistant of the farm owner’s long-time lawyer prepared a draft will naming the friend as the sole trustee of the farm owner’s estate and the beneficiary entitled to inherit the farm property.  The friend asked the Court to determine that the 2013 will was valid so that she would receive the farm.  The farm owner’s brother opposed the request on the basis that there was no valid 2013 will.

At trial, two copies of the 2013 will were marked as exhibits.  One copy – Version 1 – had the farm owner’s signature but no witness signatures.  The other copy – Version 2 – had the farm owner’s signature as well as the signatures of two witnesses.  Both copies were marked “Draft” as the will had only been sent to the farm owner by his lawyer for review and comment; the farm owner had never attended at his lawyer’s office to revise and/or execute the will.  However, the friend claimed that Version 2 had been signed by the farm owner and witnessed prior to his death in 2015.  The brother claimed that Version 2 was signed by the alleged witnesses only after the farm owner’s death once the friend had discovered that Version 1 would not be valid without the signatures of witnesses. 

The friend testified that, after the farm owner’s death, she had searched for a will.  She said that she had found Version 1 in a filing cabinet in the farm owner’s house and took it to the lawyer’s office where she learned that the lawyer had no fully executed copy of the will.  During the visit, the lawyer’s assistant made a copy of Version 1 and returned the original to the friend.  The lawyer’s assistant also advised the friend at that time that Version 1 was not valid because it was not signed by witnesses.  The friend further testified that, after her visit to the lawyer’s office, she found the original Version 2 will on top of a kitchen cupboard in the farm owner’s house (not in the filing cabinet where she found Version 1).  Version 2 was signed by two witnesses and would be valid.  In fact, the Trial Judge found that Version 2 was valid and ruled in the friend’s favour.

No original of Version 1 or Version 2 of the 2013 will was produced at trial.  However, between the time judgment was rendered following trial and the hearing of the appeal, the friend located the original of Version 2 of the will and asked the Court of Appeal to allow it to be admitted as “fresh evidence”.  The Court rejected the request, finding that the new evidence would not change its conclusion that the friend had failed to prove the validity of the 2013 will.  The Court of Appeal found that the Trial Judge made a key error in failing to appreciate the relevance of the evidence of an expert in handwriting called by the farm owner’s brother.  The expert testified that the farm owner’s signatures on the two copies of the 2013 will – Version 1 and Version 2 – were identical.  Without being able to produce the original of Version 1 and, in doing so, prove that each of Version 1 and Version 2 was signed (separately) by the farm owner, the friend failed to overcome the appearance that Version 2 was not signed by the witnesses until after the farm owner’s death.

Read the Court of Appeal's decision at: 2021 ONCA 442 (CanLII).

In Search of Lost Roads

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

Once a highway, always a highway?  According to Section 26 of the Municipal Act, 2001, all highways that existed on December 31, 2002 continue to be recognized as public highways unless they have been closed.  Historically, highways (not just “highways” in the sense of a major paved road but also sideroads and concession roads, gravel or paved) could be established in a number of ways, including by passage of a municipal by-law or by operation of the common law doctrine of “dedication and acceptance”.  After January 1, 2003, however, all highways must be established by by-law of a municipality. 

The doctrine of dedication and acceptance required that the owner of land on which a road was located formed the intention to dedicate the land to the public as a public road, that the intention was actually carried out by opening the road to the public, and that the road was accepted as such by the public.  Dedication could also occur by “usurpation and long enjoyment” with the dedication by the landowner being inferred from the use of the road by the public. 

While it might seem that establishment of roads by dedication and acceptance would have been an imprecise and uncertain practice (which it was) as compared with establishment of roads by municipal by-law, the fact that a municipal by-law was once passed doesn’t always translate into the continuing existence of a road.  Some roads that were established by by-law have disappeared.  Some roads were never actually created.  The circumstances surrounding the passing of the by-law and the plans for the road may be lost to history.  Roads can be lost to history.  Those seeking to prove the existence of a disputed road today often face a tall order. 

An application decided by the Superior Court provides a case in point.  The applicant landowner owned a parcel of land bisected by a river.  The north section of the property, lying north of the river, was effectively landlocked and accessible by water only.  However, the local municipality had passed a by-law in 1890 purporting to establish a public road through neighbouring property (also to the north of the river) that would provide land access to the landlocked parcel.  The landowner applied for a declaration that the 1890 by-law established a road that ought to be opened up (through the neighbours’ property) for public use today.

The neighbouring owners opposed the application, as did the municipality.  The neighbouring owners contended that there was no evidence of a road ever having existed on the ground through their property.  Land registry documentation did not disclose a road on the property.  Some of the area where the road was supposed to have existed was now under water or part of environmentally sensitive wetlands.  An aerial photograph of the area from 1926 provided no evidence of a road.

The municipality said the highway described in the 1890 by-law was never built; the municipality never succeeded in acquiring all of the land necessary for the road. 

The applicant landowner took the position that the passing of the 1890 by-law, and its registration in the Land Registry, was sufficient to create a valid “highway” that continues to exist today regardless of its current physical condition.  The by-law, the applicant submitted, described the boundaries with certainty.  The applicant provided evidence of a land surveyor suggesting that the location of the road can still be established.  The applicant also pointed to “visual evidence of a historical road in the area”. 

The Court sided with the respondents and dismissed the application.  While Council Minutes from the 1880s and 1890s suggested there was substantial community interest in the development of a road across the neighbours’ property, and some steps were actually taken to create the road, the process was never completed.  A survey for the proposed road was prepared.  The municipality acquired some of the land needed for the road.  There was even evidence that some portions of the proposed road were opened for public passage.  However, the full road never came to fruition and eventually, it seemed, was lost.

Apparently, some portions of the road that were constructed did not follow the original survey, which caused friction between landowners.  The municipal record contained reference to a “forced road” in one location where the road deviated from the planned route onto private property.  The Court noted that there was ample evidence that sections of the proposed road were through wet and marshy land, which would complicate construction.  Ultimately, the Court disagreed with the applicant that the location of the road could be described with certainty.  This was one reason for the dismissal of the application.

The application also failed because there was no modern record showing that the road ever existed as planned by the 1890 by-law.  The evidence did not show that all necessary land was acquired by the municipality.  The survey that laid out the road had been lost.  There was no reliable historical photographic evidence that showed the location of what might have been a publicly travelled road. 

The road, to the extent it ever truly existed, had been lost to history.

Read the decision at: 2021 ONSC 3215 (CanLII).