In short:
- In case of poorly executed or doubtful wills, Section 21.1 of the Succession Law Reform Act of 2022 in Ontario allows the courts to confirm the validity of a will when there is some proof as to the testamentary intentions of the deceased.
- In Hejno v. Hejno, 2025 ONCA 876, Mr. John Jeffrey Hejno had executed a valid will back in 2018. He had also prepared draft wills both in 2022 and 2024, after he suffered from a mild heart attack.
- After his passing in 2024, his common-law partner, Jennifer, sought to validate draft wills of 2024 or 2022, both of which were favourable to her. The court validated the 2024 draft will.
- With the other dependants challenging this in the Appeals Court, and the 2018 will presented as fresh evidence, the Appeals Court set aside the lower court order validating the 2024 draft wills.
It is fairly common for someone to change their mind after executing a will. You may update a portion of the will by executing a codicil or replace the entire will with an updated one. As far as the law is concerned, the last executed and legally binding will is the one the court will consider for probate. However, if the validity of the last executed will is in doubt, the courts will have the final say on the matter. To avoid this, it is always advisable to consult an experienced wills and estate lawyer to ensure that your will is executed properly.
What are the essential elements of a properly executed will?
For a will to be valid and legally binding in Ontario, it must meet the following criteria.
- Holographic will: A handwritten document signed by the testator. In this case, there is no need for any witnesses. But the language must be clear, reflecting the testamentary intentions of the testator.
- Formal will: A legally executed will.
- The testator must be at least 18 years of age and of sound mind.
- The language of the will should be clear and unambiguous.
- It should be in physical form.
- It should be signed by the testator in front of two witnesses.
- The document should also be signed by the two witnesses not directly related to the beneficiaries.
Please note that the witnesses need not be in full knowledge of the contents of the will. It is enough that they witnessed the testator signing the document, thus verifying the authenticity of the signature.
Background of the case
In Hejno v. Hejno, 2025 ONCA 876, only the earliest of the wills prepared by the deceased Mr. John Jeffrey Hejno in 2018 was properly executed and was therefore legally valid. He died on May 6, 2024, suffering from hepatocellular carcinoma. The dependants with a valid claim over his estate are as follows: his divorced wife, Irene Veronica Hejno; their sons, Jeffrey John Hejno and David Hejno; David’s son, Shawn Hejno; and the deceased’s common-law partner for the last 14 years of his life, Jennifer Louise Hejno (formerly Stanley).
John had lost touch with David a long time ago but maintained a good relationship with Shawn, his grandson. It is clear that his main intended beneficiaries were Jennifer, Jeffrey, and Shawn. However, he was also legally required to provide spousal support to Irene, which his estate continued to make after his death.
The first will, properly executed back in 2018, sets up a spousal trust in the name of Jennifer to be funded by his stake in York Plaza Developments Ltd. and another family trust for his grandson Shawn, whose business ventures John wanted to support, funded by his stake in 244135 Realty Ltd. Jeffrey and Shawn were also designated as his estate’s residual beneficiaries.
After a mild heart attack in 2021, he sought to make alterations to his will. He signed new primary and secondary wills in 2022, witnessed by his accountant, Mr. Lepore. Under these new wills, the shares from both his corporate holdings will now fund the spousal trust meant for Jennifer. There was no provision for a separate family trust for Shawn, who stood to inherit the residue of the estate after Jennifer’s passing as per these new wills.
However, these wills were not executed properly since they were witnessed only by Mr. Lepore. Also, the original draft wills have not been located, with only a photocopy available with Mr. Lepore. In 2024, before his death, John again prepared draft wills in consultation with his lawyer, Mr. David Simpson. These draft wills were based on the 2022 ones. Also, slip sheets were inserted to state John’s stake in the shares of YPDL. However, the percentage of John’s stake in YPDL mentioned in these slip sheets was not accurate.
Validation of the 2024 drafts by the Court
After his death, Jennifer approached the Superior Court of Justice to validate the unsigned draft wills of 2024, under Section 21.1 of the Succession Law Reform Act. Under this provision, the Court has the authority to validate a poorly executed will if it is convinced of the testamentary intentions of the deceased. If the 2024 draft wills could not be validated, she sought the court to validate the 2022 draft wills as an alternative.
There was no mention of the 2018 will during these proceedings. The other dependants, namely John’s first wife, Irene, grandson Shawn, and his sons, Jeffrey and David, were not even aware of the existence of the 2018 will. With nobody contesting Jennifer’s claim, the court validated the 2024 drafts.
Later, the remaining dependants contested this order, stating that John could not make up his mind about the distribution of his estate. During the appeal hearing, the legally executed 2018 will was presented to the court as evidence. The court subsequently ruled that, in light of the legally executed 2018 will, the order validating the 2024 draft wills had been set aside.
Key observations
- Based on the statement from John’s solicitor, it was clear that the deceased had yet to make up his mind before his death.
- This makes the draft will of 2024, favouring his common-law partner, Jennifer, invalid.
- The court observed that the 2018 will, which was not produced before the Superior Court of Justice during the validation of the 2024 draft wills, should be treated as fresh evidence.
- Taking all these facts into account, the Court of Appeal set aside the lower court’s ruling validating the 2024 draft wills.
- The Appeals Court remitted the matter of determining the validity of the 2022 draft wills back to the Superior Court of Justice.
Conclusion
In this case, it was clear that the deceased could not make up his mind before his death regarding the changes to his will. His solicitor’s statement to the court confirmed this fact. This seems to be the main reason for not properly executing the will in time before his death. The court, therefore, set aside the lower court’s ruling validating the 2024 draft wills. For now, the matter has been referred back to the Superior Court of Justice to decide on the validity of the 2022 draft wills.
How can our wills and estate lawyer help you in such cases?
This case clearly demonstrates the importance of engaging the services of a qualified wills and estate lawyer when executing or updating your will. At Nanda and Associate Lawyers, our experienced wills and estate lawyers will ensure that your new will is executed properly and legally supersedes your earlier wills. And when the time comes, we will act on your behalf in ensuring that the provisions in your final will are carried out as per your wishes.
Reach out to our wills and estate lawyers for a consultation today!
