Ruling notes validation lacked governing statutory formalities
The Ontario Court of Appeal set aside a decision validating the drafts of wills prepared in 2024, declared those drafts invalid, and remitted the matter to the Ontario Superior Court of Justice for a full hearing on the merits.
In Hejno v. Hejno, 2025 ONCA 876, John and Irene married and had two children, Jeffrey and David. Shawn, David’s son, was John’s only grandchild. John and Jennifer then had a common law relationship for more than 14 years.
A court order awarded Irene, as John’s ex-wife, spousal support and required his estate to maintain these payments after his death.
In 2018, John properly executed a will, which established:
John had a mild heart attack in 2021. In December 2022, John improperly executed new primary and secondary wills in the presence of only one witness, his accountant. The accountant kept photocopies but no signed originals.
In Jennifer’s favour, the 2022 wills established a spousal trust, which would hold the 244135 Realty Limited shares. However, these wills created no family trust for Shawn and left him no assets until Jennifer’s death, when he would inherit the estate residue.
The 2022 secondary will sought to govern John’s corporate holdings and minimize the estate administration tax.
In early 2024, as his hepatocellular carcinoma progressed, John consulted a lawyer to prepare drafts based on the 2022 wills. The new wills, which remained incomplete before John’s death, included:
John passed away in May 2024. Jennifer found the 2024 drafts and applied to validate them under s. 21.1 of Ontario’s Succession Law Reform Act, 1990. Alternatively, she sought to validate the 2022 wills.
In November 2024, Justice M. Dale Parayeski of the Ontario Superior Court of Justice validated the 2024 drafts, including the spousal trust for Jennifer, and ordered John’s estate to keep paying Irene spousal support.
The application judge offered no reasons for his decision, perhaps due to Jennifer’s unopposed application.
John’s ex-wife, children, and grandson appealed. The appellants alleged that the 2024 drafts did not reflect John’s true testamentary intentions, which according to his solicitor were fluctuating in the lead-up to his death.
After the 2018 will came to light, the appellants alleged that Jennifer’s counsel advised that John’s former corporate counsel sent her an electronic copy of the 2018 will in early April 2025. Jennifer did not oppose admitting the 2018 will as fresh evidence.
The Court of Appeal for Ontario allowed the appeal, set aside the application judge’s validation of the 2024 drafts, deemed those drafts invalid, and remitted the matter for a redetermination on the merits, including the validity of the 2022 wills.
First, the appeal court found the 2018 will admissible as fresh evidence. The appeal court considered it relevant, credible, not previously discoverable with due diligence, and capable of reasonably impacting the outcome.
The appeal court explained that the 2018 will’s existence might weigh against validating the not fully executed 2022 wills and the 2024 drafts, without a cogent explanation for the altered distribution.
Second, the appeal court considered the 2024 drafts invalid based on the evidence. The appeal court ruled that the judge’s absence of reasons prevented deference and justified intervention.
According to the appeal court, John did not execute the 2024 drafts in line with the governing statutory formalities or even in an imperfect manner. The appeal court determined that the 2024 drafts did not express his testamentary intentions.
The appeal court noted that his lawyer’s evidence showed that John remained undecided about aspects of his estate planning until April 2024.
The appeal court added that the unsigned and uninitialed slip sheets stated ownership interests contradicting the accountant’s evidence, which raised substantial doubt regarding their reliability.
Lastly, the appeal court remitted the 2022 wills’ validity to the Superior Court, rather than validating them on appeal as proposed by Jennifer.
The appeal court held that the fact-intensive inquiry for validating an improperly executed will would involve findings on a matter unaddressed by the application judge and conflicting evidence that could implicate credibility and require testimony.
