The case Luty v. Magill  is an important decision of the Ontario Superior Court of Justice, as it revolves around the issues that can arise with the use of a “fill in the blanks” will. Although such a will is often advertised as a time-saver and cheaper than using a lawyer, it has inherent problems that often result in a need to go to court to sort out complications and misunderstandings. This case is an example of such problems.

Prior to her death, Ms. Stark properly completed and executed a will using a will form. She subsequently made a number and variety of changes on the face of her will. The issue before the court was the legitimacy and efficacy of the changes, specifically whether they could be used to revoke bequests that had been previously made in the will.

There were three types of alterations that needed to be considered. The first was changes to the appointment of executors. One name had been stroked out, another written above it in pencil, then a third name written above that in pen, and then a fourth name added as an alternate executor but also stroked out. As only one of the first three-named individuals was willing to act as executor, the court appointed that person as executor.

The second type of alteration consisted of alterations in which the names of beneficiaries and monetary amounts were faintly scratched out with the same pen as used for the original will; in some, only the names were crossed out but not the amount, and some were marked “delete JS.” There were no dates for the alterations so there was no way of knowing when they were written.

Finally, the third type of alternation was changes to bequests which were so heavily crossed out that the original names and monetary amounts were completely illegible. These were signed and dated after the will was signed.  The judge stated that the will was not a holograph will but a formally executed will and as such any changes needed to be made in accordance with the Succession Law Reform Act, R.S.O. 1990, c.S.26, section 18. This section requires the signatures of the testator and of the witnesses attesting to the alterations, except where the alterations render the words of the will no longer apparent. As such, the deletions that did not totally obliterate the names and/or monetary amounts were deemed invalid and the original bequests were still in effect. Those alterations that completely hid the names and/or monetary amounts were found to be holograph codicils and, as such, those alterations were valid.

This case illustrates the problem with attempting to revise an executed will. Ms. Stark's attempt to do so without legal advice undoubtedly cost her estate more than proper legal advice would have. 

Another case dealing with the problems associated with legal will kits is Vaillancourt Estate v. Vaillancourt .  There, a woman prepared a will using a Canadian Legal Will Kit.  Even though the will was a valid one, Justice Angers found it quite lacking in several respects.  He said, “I do not know who prepares these will forms but it is unfortunate that people should rely on them.” The will contained no clause vesting the property in the executors.  Nor was there a realization clause or power of sale given to the executors or a provision for the payment of debts.

These cases illustrate the need to have proper legal advice in preparing a will.  Not only will this allow your wishes to be carried out more completely, it will save time and money in legal advice after your death.    

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1-Source: Recent Developments in Estate and Personal Tax Planning/Estate Litigation by Mami M.K. Whitaker: www.lexpert.ca
2-(2004) 12 E.T.R. 25 (Ontario Superior Court of Justice).
3-[2000] N.B.J. No. 520