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Full text of "Report of the Ontario Law Reform Commission on the proposed adoption in Ontario of the Uniform Wills Act, 1968.--"

LAW LIBRARY 



YORK 

UNIVEK5ITY 



Digitized by the Internet Archive 

in 2011 with funding from 

Osgoode Hall Law School and Law Commission of Ontario 



http://www.archive.org/details/reportofontariOOonta 



5V 




ONTARIO 



REPORT 



of the 



ONTARIO LAW REFORM COMMISSION 



on 



THE PROPOSED ADOPTION IN ONTARIO OF 
THE UNIFORM WILLS ACT 



1968 



DEPARTMENT OF THE ATTORNEY GENERAL 















The Ontario Law Reform Commission was established by section 1 
of The Ontario Law Reform Commission Act, 1964, for the purpose of 
promoting the reform of the law and legal institutions. The Com- 
missioners are: 

H. Allan Leal, Q.C., LL.IVL, LL.D., Chairman 
Honourable James C. McRuer, LL.D. 
Honourable Richard A. Bell, P.C., Q.C. 
W. Gibson Gray, Q.C. 
William R. Poole, Q.C. 

Dr. Richard Gosse, Q.C, is Counsel to the Commission. The 
Secretary of the Commission is Miss A. F. Chute, and its offices are at 
Room 470, Parliament Buildings, Toronto, Ontario, Canada. 



fl^W5 



TABLE OF CONTENTS 

I Introduction 7 

II I [olograph Wills 9 

III Lapsed Gifts 11 

IV Conflict of Laws 14 

V I Fniform Provisions Omitted 21 

1. No Ademption Where Commingling 

2. Charitable Trusts 

3. Devises of Estates Tail 

4. Illegitimate Children 

VI Section by Section Commentary on the Proposed Act. . 24 

APPENDICES 

A. Concordance of Provisions of the Proposed Ontario 

Act, The Uniform Wills Act and The Present 
Ontario Wills Act 49 

B. The Ontario W t ills Act 51 

C. The Uniform Wills Act 63 

D. The Wills Act, 1963 (U.K.) 77 



3] 




ONTARIO 



ONTARIO LAW REFORM COMMISSION 



PARLIAMENT BUILDINGS 
TORONTO 2 



To: The Honourable A. A. Wishart, Q.C., 

Minister of Justice and 
Attorney General for Ontario. 



Dear Mr. Attorney: 

Pursuant to the provisions of section 2 (1) (a) of The Ontario Law 
Reform Commission Act, 1964, the Commission initiated a study concern- 
ing the desirability of adopting in Ontario the model Wills Act of the 
Conference of Commissioners on Uniformity of Legislation in Canada. 
The Commission now submits its Report. 



[5] 



CHAPTER I 
INTRODUCTION 

The model Wills Act (commonly called The Uniform Wills Act) of 
the Conference of Commissioners on Uniformity of Legislation in Canada 
came before our Commission in 1966 following a study made by the 
Wills and Trusts Sub-Section of the Ontario Branch of the Canadian 
Bar Association. In this Report, the model act is referred to as the 
Uniform Act. 

Shortly after the Wills and Trusts Sub-Section was organized in 
1964, it established a special committee, under the chairmanship of 
George W. Edmonds, Q.C., to make a comparative study of The Ontario 
Wills Act and the Uniform Act. 1 This committee, hereafter referred 
to as the Bar Committee, met throughout 1965 and produced a report 
which was adopted by the Wills and Trusts Sub-Section. In carrying 
out its study, the Bar Committee considered that its primary interest 
should be achieving uniformity rather than drafting an ideal Wills Act 
which would offer "a new approach to the law of wills". It was unanimous 
in its general approval of the Uniform Act as a. model, but recommended 
certain modifications in the text of the Act. At the mid-winter meeting 
of the Ontario Branch of the Canadian Bar Association in February, 
1966, the following resolution was passed: 

Resolved : 

"That the report of the Sub-Committee of the Wills and Trusts 
Sub-Section, recommending the enactment in Ontario of The 
Uniform Wills Act, prepared by the Commissioners on Uniformity 
of Legislation in Canada, be accepted and approved subject to 
certain amendments, and referred by the Ontario Branch of the 
Canadian Bar Association to the Ontario Law Reform Commission". 



Historical Background 

The Uniform Act consists of three Parts. Part One deals with such 
matters as formal validity, revocation, alteration, revival, ademption 
and lapse. Part Two contains provisions relating to conflict of laws. 
Part Three contains transitional provisions. 

Shortly after the first Conference of the Commissioners on Uni- 
formity of Legislation in Canada in 1918, the Conference undertook a 
study of wills legislation. In 1929 they approved a Uniform Act and 
recommended it to the provinces for enactment. The 1929 model act is 
set out on pages 37-47 of the Proceedings of the Conference for that 
year. This model act was enacted in Saskatchewan in 1931, in Manitoba 
in 1936, in the Northwest Territories in 1952 and, with slight modifica- 
tions, in the Yukon Territory in 1954. 



^he other members ot" the Committee were Mr. Stanley C. Biggs, Q-C, Miss 
June Bushell, Miss Shirley Ann Devell, Mr. T. S. Farley, Q.C., Mr. Bradley 
Gleason, Miss Donna Haley, Mr. G. D. Hyman, Mr. H. Allan Leal, Q.C., Mr. 
Frank Maher, Q.C., Mr. Charles Reid and Air. Alexander G. Reid. 

[7] 



8 

During the decade of the 1950's, the Conference revised the Uniform 
Act. In 1953 a new Part Two was approved and in 1957, a revised 
Part One. Part Three remained unchanged from 1929. These three 
Parts constituted the Uniform Act from 1957 to 1966. They are set 
out on pages 378-392 of a volume published by the Conference entitled 
"Model Acts Recommended from 1918 to 1961 Inclusive". Meanwhile, 
New Brunswick in 1959, and Manitoba and British Columbia in 1960, 
adopted the revised Uniform Act, all with some slight modifications. 

In 1959, 1960, 1962, 1964, 1965 and 1966, the Nova Scotia Com- 
missioners, led by Dean Horace E. Read, Q.C., of the Dalhousie Law 
School, reported on developments in the United Kingdom with reference 
to changes in private international law as it pertains to the law of wills. 
In 1963, the United Kingdom Parliament enacted legislation to implement 
the provisions of the 1961 Hague Conference on the subject. At the 
1966 meeting the Conference on Uniformity in Canada approved a 
new Part Two, based, to a large extent, on the new United Kingdom 
legislation. In addition, in 1966, section 33 of the Uniform Act dealing 
with the lapsing of gifts was revised by the Conference. The revised 
Part Two is set out on pages 138-140 of the 1966 Proceedings and the 
new section 33 is set out on page 146. 

Changes made in 1966 were not contained in the Uniform Act 
as it was studied by the Bar Committee. 

Many provisions in the present Ontario Act are similar to provisions 
in the Uniform Act. Part Two of the Uniform Act, as it was adopted 
in 1953, was enacted in Ontario in 1954 and now appears as section 19. 
The question before our Commission was whether or not Ontario should 
bring its wills legislation into line with the present model legislation. 
As indicated above, the only common law provinces in Canada, apart 
from Ontario, which have not adopted the Uniform Act are Prince Edward 
Island, Nova Scotia and Newfoundland. Generally speaking, the Com- 
mission feels that uniformity of legislation in this area of the law is 
desirable and that, in the absence of compelling reasons with respect to 
particular sections, the provisions of the Uniform Act should replace those 
of the present Ontario statute. 

Our Commission was informed by Senior Legislative Counsel, 
L. R. MacTavish, Q.C., who, for sometime, has been one of the Ontario 
Commissioners of the Conference on Uniformity, that the question 
whether Ontario should enact Part One of the Uniform Act has been 
discussed from time to time with the Attorney General of the day and 
his Deputy- On one occasion the matter was brought before the Attorney 
General's Committee on the Administration of Justice. Mr. MacTavish's 
recollection is that in each instance the result was to defer the matter 
indefinitely on the ground that there was no demand for a new act in 
this jurisdiction and that Ontario jurisprudence was well settled and 
generally accepted. On the other hand, suggestions have been made 
on occasion with respect to specific matters in the law of wills. Some 
of these have been acted upon. For example, Ontario altered its rule 
with regard to anti-lapse provisions in 1959 and again in 1963. In this 
instance Ontario did not adopt the anti-lapse provisions contained in 
the Uniform Act but formulated a similar, but not identical, rule. 



CHAPTER II 

HOLOGRAPH WILLS 

A holograph will is one that is entirely in the handwriting of the 
person making it and signed by him, but which is not witnessed. Such 
a will is, under ordinary circumstances, invalid in Ontario because it 
fails to meet the formal requirements as to attestation laid down in the 
existing legislation. Most jurisdictions in the past have had similar rules 
in regard to attestation. However, many authorities have regarded 
that such laws have been unduly harsh in this respect and, as a result, 
a considerable number of jurisdictions now recognize holograph wills. 
Section 7 of the Uniform Act provides that such wills be formally valid. 

Were section 7 of the Uniform Act adopted in Ontario, certain 
groups would benefit. These are: 

(a) those living in remote areas without access to solicitors; 

(b) those, from jurisdictions where holograph wills are recognized, 
who are ignorant of the provisions of Ontario law; 

(c) those in extremis who have no opportunity to arrange for the 
preparation or formal execution of a will; 

(d) those who, because of poverty, ignorance, or prejudice cannot 
or will not consult a solicitor. 

The right of an individual to own and dispose of his assets is basic 
to our law. Any effort to restrict or circumscribe that right should only 
be permitted where the necessity for restriction clearly justifies inter- 
ference with the basic freedom of the individual to dispose of his property. 
The fact that the right of a testator to prepare and sign a will in his 
own handwriting has been denied over the years by English law is by 
itself no argument in favour of such denial. 

Holograph wills are recognized in an increasing number of juris- 
dictions, owing in large part to the Hague Convention of 1961 which 
contained specific provision for them. The result is that a holograph 
will may now operate to pass personal property in Ontario if the will 
meets the requirements of section 19 of the existing legislation. 

Section 7 of the Uniform Act has been adopted in three of the 
common law jurisdictions in Canada without change and in three others 
with minor variations in wording. It is already part of the civil law of 
Quebec. At the present time, British Columbia, Nova Scotia, Prince 
Edward Island and Newfoundland are the only Canadian jurisdictions 
outside Ontario where a holograph will is not valid. It may well be that 
when the Atlantic Provinces mentioned above consider adopting the 
Uniform Act, some or all of them will include this provision. Since 
the purpose of the uniform legislation is to eliminate differences in 
particular areas of provincial legislation a provision of the Uniform Act 
should not be rejected without a very good reason. The Uniform Act 
should not be used merely as a guide. 



10 

Four principal reasons have been advanced for not recognizing 
holograph wills. These are discussed below. 

1. The presence of two witnesses lessens the possibility of forgery, 
or makes it easier to prove that the will is the will of the testator. 

If anything, it would seem that a will completely in the handwriting of 
the testator can more easily be proved to be his will than a printed or 
typewritten document which he merely signs, the presence of witnesses 
notwithstanding. The testator has applied his mind to the will through- 
out its preparation. Proof of the will is not confined to proof of the 
testator's mental state at the moment of its signing. It would seem 
most unlikely that there would be many successful forgeries of holo- 
graph wills, and no recorded case in the jurisdictions which have adopted 
section 7, or an equivalent provision, in which the testator's authorship 
was in issue and forgery was alleged has been drawn to our attention. 

2. A provision for holograph wills would induce more people to 
prepare their own wills and this, in turn, would lead to: 

(a) additional litigation involving interpretation of home- 
made wills; and 

(b) unintelligent disposition of estates. 

It is open to question whether a provision for the making of holograph 
wills would appreciably increase the number of home-made wills. It is 
more likely that it would merely make valid some of the attempts at 
home-made wills which are being made under the present system. The 
same people who now buy a will form at a stationers or write out their 
will on a piece of paper would continue the practice, and the people who, 
at present, consult their solicitors would continue to do so. The pro- 
fession could not be said to be challenging the lay public to become legal 
draftsmen. 

While it is probably true that holograph wills would bring more 
interpretation cases to the courts, no one can say how substantial the 
increase might be, and, in any event, it is difficult to accept this as an 
argument against them. A more cogent argument could be that the 
persons most likely to attempt a holograph will would also be those with 
the fewest assets available to pay for the cost of interpreting the will. 
But against that, such circumstances would be likely to diminish the 
economic justification of litigation. One could, by the same token, 
substantially reduce the number of contract cases before the courts 
by making it obligatory for every contract to be prepared by a solcitor. 

3. The provision for holograph wills would raise a new series of 
problems and litigation as to what is and what is not a will. 

Jurisdictions which have had experience with a provision permitting 
holograph wills have found that such wills do, in fact, create some addi- 
tional problems. While this is undeniably true, the Bar Committee 
traced no more than seventy reported Canadian cases since 1931. in 



11 

which any question connected with holograph wills, however remotely, 
has had to be considered. The Commission believes this is not a valid 
reason for denying such wills validity. 

4. A holograph will lends itself more readily to fraud or undue 
influence than does a will executed in the English form with the 
safeguard of witnesses. 

Jurisdictions in Canada, the United States and throughout the world 
(including Scotland), which have had holograph wills for many years, 
have not found it necessary to insist on further safeguards. It would 
be very difficult to induce a testator by fraud or trickery to make a holo- 
graph will through ignorance of its contents. If the testator writes out 
the provisions of the will in his own handwriting, he must, if he is capable, 
understand what he is writing, whereas if he is merely asked to sign a 
typed document even though in the presence of witnesses, he may well 
be under some misapprehension as to the nature or contents of the 
document. The presence of witnesses is no guarantee against fraud. 
The real value of witnesses in guarding against undue influence is open 
to considerable doubt. 

It is the opinion of the Commission that these reasons are insufficient 
to overcome the benefits to be gained by giving validity to these forms 
of wills and by having uniform legislation throughout Canada. 

It should be added that a majority of the members of the Ontario 
Branch of the Canadian Bar Association, at its 1966 mid-winter meeting, 
voted in favour of the acceptance of section 7 of the Uniform Act. This 
Commission recommends its acceptance. 1 



CHAPTER III 
LAPSED GIFTS 

General Principle 

The general principle with regard to the lapsing of gifts made by a 
will is that a gift by a testator will fail if the beneficiary under the will 
dies before the testator. In such cases the subject matter of the gift 
will normally fall into the residue of the testator's estate and be disposed 
of accordingly. In certain instances, it is probable that a testator 
would not wish a gift to lapse but would wish it to go to those persons 
who would inherit from the deceased beneficiary. This is particularly 
true of close relatives of the testator. 

Early Legislation 

To remedy this situation, at least in part, the English Wills Act 
of 1837 contained a provision designed to save gifts to "a child or other 



1 The Commission wishes to acknowledge the assistance it received on the subject 
of holograph wills from a memorandum prepared for the Wills and Trusts Sub- 
Section by T. S. Farley, Q.C. 



12 

issue" of the testator from lapsing where such deceased child or issue 
left issue. Section 33 provided that, in such instances, the gift should 
not lapse but take effect as if the death of the beneficiary had happened 
immediately after the testator, unless a contrary intention appeared in 
the will. The identical provision was adopted in Ontario in 1873 when 
the Ontario legislature enacted the forerunner of the present Wills Act. 

The Substitued Donee 

Difficulties arose in administering the section dealing with lapse, 
particularly from the transmission and tax points of view, because the 
section required the testator's gift to pass through the estate of the 
deceased beneficiary. It was these difficulties that led to the section 
being amended in 1959 in Ontario to provide that the gift should go 
directly to those who would be entitled to inherit from the deceased 
beneficiary had he died intestate. The 1959 legislation therefore sub- 
stituted a different donee for the one named by the testator. 

Other Legislative Changes 

Between 1873 and 1959 the lapse section was amended on three 
occasions, apparently with the view to broadening its application. 
In 1914 the words ' 'either before or after the making of the will" were 
inserted to make it clear that the section would apply where the bene- 
ficiary died prior to the making of the will. In 1919 the provision was 
extended to cover gifts to brothers and sisters, in addition to "children 
or other issue". Finally, in 1926, the section was made applicable to 
class gifts. It is doubtful whether the first of these changes was necessary 
as the case law had already decided that the section applied where the 
beneficiary died prior to the date of the will. Insofar as the 1926 change 
is concerned it would seem inappropriate in view of the rules with respect 
to class-closing. Where a testator makes a gift to his "children" or 
"grandchildren", he would normally intend only those members of the 
class to take who would be alive at his death or born subsequently. 
In the instance where he makes a gift to his children, only those children 
who survive him will share the gift. The estate or issue of a child who 
predeceases him will not receive a share. There is no lapse with respect 
to that child, as the other children share the entire gift. If the testator 
wishes the share that a predeceasing child would have received to go to 
the issue of that child, or to someone else, he must make a provision in 
the will to that effect. It was for these reasons that the changes made in 
the 1914 and 1926 amendments were dropped when the section was 
revised in 1959. Thus, the present section 36 of the Ontario Act makes 
no reference to class gifts and has omitted the words "either before or 
after the making of the will". 

The 1959 section also made one further change. The words "child 
or other issue" were changed to read "child" or "grandchild", with the 
result that the beneficiaries covered by the section were children, grand- 
children, brothers and sisters. It was thought that the substitution of 
"grandchild" for "issue" would be an improvement administratively. 
In any event, it would be a rare instance where there would be a sub- 
stitutional gift to issue beyond grandchildren. 



13 

Since the 1959 amendment made distribution turn on intestacy 
the rights of the surviving spouse were involved. It was decided in 
Re Meunier, [1963] 1 O.R. 213, that not only was the surviving spouse 
entitled to his or her proportional share of the gift but also to his or her 
preferential share under The Devolution of Estates Act. As section 36 
was not intended to have this consequence it was amended in 1963 so that 
the surviving spouse would be entitled only to his or her proportional 
share. 

The Uniform Provision 

In dealing with lapse, the Conference on Uniformity had, in 1929, 
adopted the principle which was later contained in the 1959 Ontario 
amendment. Section 30 of the 1929 Uniform Act was confined in its 
application to "child or other issue" of the testator but was extended to 
class gifts. It contained no reference to whether the deceased bene- 
ficiary died before or after the making of the will. When Part One of 
the Uniform Act was revised in 1957, the lapse provision, then appearing 
as section 33, was revised in several respects: 

(1) It was extended to include "brothers and sisters"; and 

(2) It specifically stated that the section should apply where the 
deceased beneficiary died before or after the making of the will. 

In 1966 the Conference again revised the uniform section to take 
into account the rights of a surviving spouse. Section 33 of the uniform 
legislation now contains a proviso, to be applicable in provinces such 
as Ontario where a surviving spouse is entitled to a preferential share, 
to exclude surviving spouses from receiving a preferential share. This 
corresponds to the Ontario 1963 amendment. The 1966 uniform pro- 
vision also contains an optional feature which would prevent the gift 
from lapsing if the deceased beneficiary has surviving him, at the death 
of the testator, a spouse but no issue. It will be recalled that for any 
of the sections previously discussed to operate it was a condition precedent 
that the deceased beneficiary should leave issue surviving him. 

The differences between the present section 36 of The Ontario Wills 
Act and the 1966 uniform section may be summarized as follows: 

(1) The Ontario Act applies to gifts to children, grandchildren, 
brothers and sisters of the testator, whereas the Uniform Act 
applies to children or other issue and brothers and sisters; 

(2) The Ontario Act does not apply to class gifts, whereas the 
Uniform Act does; 

(3) The Ontario Act makes no reference to whether or not the 
deceased beneficiary dies before or after the making of the will, 
whereas the Uniform Act makes such a reference; 

(4) The Ontario Act only applies when the deceased beneficiary 
leaves issue, while the Uniform Act makes it optional for the 



14 

section to apply where a spouse of the deceased beneficiary is 
surviving at the death of the testator and there are no issue 
surviving at that time. 

Conclusion 

Our Commission believes that the Ontario section is preferable to 
the uniform section insofar as the first three differences are concerned. 
However, the Commission also believes that there is justification for 
extending the operation of the section to situations where the deceased 
beneficiary leaves a surviving spouse but no issue. It may well be 
that a testator would not wish the gift to lapse in those circumstances. 
Furthermore, the position of the surviving spouse is already recognized. 
He or she now receives a proportional share when the deceased bene- 
ficiary leaves issue. It would be inconsistent to deny him or her a share 
if there is no issue. 

The Commission therefore recommends the retention of section 36 
of the Ontario Act with the extension of the provision to include a surviv- 
ing spouse of a deceased beneficiary who dies without issue. 



CHAPTER IV 

CONFLICT OF LAWS 

General 

As a result of the increasing mobility of Canadians, problems fre- 
quently arise as to jurisdiction and choice of law in will matters. 

This may be illustrated by the following example: 

J was born of Italian parents in England, w T hich was his domicile 
of origin. As a young man he emigrated to Manitoba, acquiring 
domicile there. He married a young lady from Quebec and made 
his will in that province. At that time he was a national of Italy. 
Later, he moved to Ontario where he spent the remainder of his 
working life. On his retirement, he decided to reside in Florida. 
He died domiciled there, although all his assets, consisting of both 
real and personal property were located in Ontario. J's son, who is 
the sole heir under the will, lives in Vancouver and would find it 
convenient to deal with his father's estate through the British 
Columbia courts. 

Two questions arise: 

1 . Which one or more of the seven territories mentioned above has 
jurisdiction to deal with the will? 

2. Which of the seven systems of law should be applied by the 
court exercising jurisdiction? 

These questions will be determined under the rules of private inter- 
national law which are part of the laws of each province, as well as of 



15 

the laws of Florida, Italy and England. Insofar as jurisdiction to admit 
a will to probate is concerned, the general rule is that the grant of probate 
will be made only if there is property of the deceased within the juris- 
diction. Although it is possible for the law of a particular jurisdiction 
to permit the granting of probate where no such property is located, the 
obtaining of probate under such circumstances will be of no assistance 
as the jurisdiction where the property is located will normally require 
probate to be granted there before the property can be dealt with. 
Thus, in the example above, for practical purposes, the will would have 
to be proved in Ontario. 

The kind of problems that the courts may be concerned with in 
these situations are as follows: 

(1) Did the testator have the capacity to make a will? 

(2) Was the will formally valid? (i.e. Was it signed and witnessed 
as required?) 

(3) What of the essential or instrinsic validity of the will? (i.e. 
Could the disposition under the will be effectually made?) 

(4) How should the will be construed? 

As the law dealing with these problems may vary from jurisdiction 
to jurisdiction, the question of choice of law is often a critical matter. 

The Common Law 

By the middle of the last century, two basic rules were firmly 
established in the common law insofar as both the formal and essential 
validity of wills are concerned: 

(1) A will disposing of immovable property (i.e. interests in land) 
had to satisfy the law of the country in which the land was 
situated ; and 

(2) A will disposing of movables was governed by the law of the 
country in which the testator was domiciled at the date of his 
death. 

Although a leasehold is regarded as personal, rather than real, proper th- 
under the English common law, it is an immovable by the above classi- 
fication. Consequently, in the example, the formal and essential 
validity of the Quebec will would have been determined in Ontario in 
the following way, until the first decade of this century (as will be seen 
later) : 

(i) as to immovables, by the law of Ontario; and 

(ii) as to movables, by the law of Florida. 

The application of the above two rules has produced unfortunate 
results in some cases, particularly with regard to movables. For example, 
an Englishman, born and domiciled in England, made a will in that 



16 

country. He subsequently changed his domicile to France where he 
died. Although his movables were located in England, the will was 
ineffective with respect to them as it did not comply with the formalities 
required by French law. 

Lord Kingsdown's Act 

To alleviate such hardships with respect to movables, the Wills Act 
of 1861 was enacted in the United Kingdom. This statute is sometimes 
referred to as Lord Kingsdown s Act. A will would be formally valid 
under it if the requirements of any of the following jurisdictions were 
met: 

A. Where the will was made outside the United Kingdom, 

1. where the will was made; 

2. where the testator was domiciled when the will was 
made; or 

3. where the testator had his domicile of origin, if that 
place was part of His Majesty's dominions. 

B. Where the will was made in the United Kingdom, 

the United Kingdom. 

Thus a will would be formally valid if it met the requirements of any of 
the above places, or, if it met the requirements, as laid down by the 
common law rule of the place where the testator died domiciled. 

The Act of 1861 had certain shortcomings: 

1. It ignored the traditional private international law distinction 
between movables and immovables and expressly applied to 
"personal estate" thus bringing leaseholds within its ambit 
instead of leaving them where they should be as "immovables"; 

2. It only applied to wills made by British subjects; and 

3. It made a pointless distinction between wills made in and out- 
side the United Kingdom. 

Criticism has also been levelled at the Act as it made relevant the domicile 
of origin, a place with which the testator might have long ceased to have 
been connected. Despite these shortcomings, the statute remained 
in effect in the United Kingdom until it was replaced by the Wills Act 
of 1963. This latter enactment was based on the 1961 convention on 
wills prepared by The Hague Conference on Private International Law. 

Ontario adopted Lord Kingsdown s Act in 1902, with the exception 
of one provision. It made no reference to wills made in Ontario. It 
was therefore only remedial as to wills made outside Ontario. All the 
shortcomings of the British Act were contained in it. In 1910, the 



17 

Ontario statutes dealing with wills were revised and consolidated into 
one enactment. The new Wills Act included the 1902 statute and also 
the provision previously omitted dealing with wills made within the 
province. The Ontario version of Lord Kingsdown s Act remained the 
law of Ontario until 1954. It last appeared as section 19 of the Wills 
Act in the Revised Statutes of 1950. 

Applying the Ontario law as it existed from 1902 until 1954 to our 
example, the Quebec will would, insofar as it dealt with personal estate, 
be formally (but not essentially) valid if it met the requirements of the 
law of any of Florida (except as to leases), Quebec, Manitoba or England. 
However, this would only be the case if the will had been made by a 
British subject. The essential validity of the will insofar as it related to 
movables would still be governed by Florida law only. Since J, in our 
example, was an Italian national at the time he made the will, the formal 
validity of his will would not, of course, have been affected by the 1902 
Ontario legislation and only Florida law would be relevant. 

The Early Uniform Legislation and its Adoption in Ontario 

Meanwhile, the Conference on Uniformity of Legislation in Canada 
had approved the 1929 Uniform Act. Part II of the Uniform Act, 
entitled "Conflict of Laws", consisted of a considerable revision and 
improvement of Lord Kingsdown 1 s Act. The draft of that part of the 
Unform Act was the work of Dean John D. Falconbridge, Q.C., of 
Osgoode Hall Law School. Dean Falconbridge produced a further 
improved revision in 1946 in a note in the Law Quarterly Review at 
page 328. In 1951, the Ontario Commissioners to the Conference on 
Uniformity recommended that Dean Falconbridge's new revision be 
substituted for Part II of the 1929 Uniform Act. The Conference ap- 
proved the substitution in 1953, making some slight modifications of 
Dean Falconbridge's new revision. The following year Ontario repealed 
the Lord Kingsdown provision in the Wills Act and replaced it with the 
new Part II of the Uniform Act. 

The 1954 amendment (S.O. 1954, c. 105) made the following improve- 
ments: 

1. There was a general clarification of the language of the statute; 

2. There was codification of the two basic common law rules with 
regard to the choice of law in regard to the formal and essential 
validity of wills; 

3. Leaseholds were to be treated as interests in land and not as 
personal estate; 

4. No distinction was made between wills made in and outside 
of Ontario, the previous provision as to wills made outside the 
province being made applicable to all wills; 

5. The new provisions were not confined to wills made by British 
subjects but were applicable regardless of the nationality of the 
testator; 



18 

6. There was codification of the common law principle that treats 
movables used in relation to land, such as the key to a house or 
title deeds, as immovables. 

The statute, in dealing with the last point, made the provision apply 
to intestacies as well as wills, a matter which might have been more 
appropriately set out in The Devolution of Estates Act, which governs 
intestate succession. 

Applying the Act of 1954 to the example (thus assuming the will 
to have been made after July 1st, 1954) the following result is obtained. 
As British nationality was no longer a condition, the provisions now 
apply to J, and the will would be formally valid as to movables if the 
requirements of any of Florida, Quebec, Manitoba or England were met. 

The New Uniform Legislation 

Between 1959 and 1966, Part II of the Uniform Act was again under 
study by the Conference on Uniformity. This re-examination was 
undertaken as a result of a movement in England and Europe to improve 
and make uniform the laws relating to the formal validity of wills. 
In 1958, the United Kingdom Parliamentary Private International Law 
Committee recommended that Lord Kingsdowns Act, which was still 
in effect in England, be replaced with a more liberal statute and one that 
would be more generally in line with legislation in other European 
countries. At the same time the Hague Conference on Private Inter- 
national Law was preparing a multilateral convention on the subject. 
This was concluded in 1961 and subsequently ratified by Great Britain, 
but not Canada, since it is not a member of the Hague Conference. 
In 1963, Great Britain enacted a new Wills Act (1963, c. 44) which 
implemented the report of the Private International Law Committee 
and the Hague Convention. 

The Conference on Uniformity of Legislation in Canada completed 
their study in 1966 and in that year a new Part II of the Uniform Act 
was approved. The changes were: 

1. The problem of renvoi was eliminated; 

2. To the available determinants of the law governing the formal 
validity of wills as regards movables, there were added the law 
of the place where: 

(a) the testator had his habitual residence when the will 
was made; 

(b) the testator was a national when the will was made, 
if there was in that place one body of law governing 
the wills of nationals; 

(c) if the will was made on board a vessel or aircraft, the 
vessel or aircraft may be taken to have been most 
closely connected; 



19 

3. Insofar as a will revokes a former will, it would be formally 
valid as to movables if it conforms to any law by reference to 
which the revoked will would be treated as properly made; 

4. Insofar as a will exercises a power of appointment, it would be 
formally valid as to movables if the making of the will conforms 
to the law governing the essential validity of the power; 

5. The law of the domicile of origin was no longer included among 
the available determinants for establishing the formal validity 
of a will as to movables; 

6. Where a law in force outside a province requires special for- 
malities to be observed by particular testators or witnesses to 
have certain qualifications, such requirements would be treated 
as formal by that province; 

7. When determining whether a will conforms to the formal 
requirements of a particular law, regard would be had not only 
to that law at the time the will was made but to any subsequent 
alteration of that law which would make such a will valid. 

All these changes had been contained in the United Kingdom Wills Act 
of 1963. Two significant provisions of the British statute were not fol- 
lowed by the Canadian Conference on Uniformity. The first of these 
made the law with respect to the formal validity of movables the same 
for immovables. If such a rule were adopted in Ontario, it could result 
that a holograph will, which is valid under Alberta law, could dispose 
of land in Ontario, when the internal law of Ontario imposes more 
formal requirements. This objection would be met if holograph wills 
were to receive recognition in Ontario, as this Report recommends. 
If the recommendation with regard to holograph wills is accepted, then 
the Commission further recommends that the law with regard to mov- 
ables be made applicable to immovables. 

The second provision of the British Act which was not considered 
suitable by the Canadian Conference on Uniformity was with respect 
to the use of the law of the place where the testator was a national at the 
time the will was made if that place was a state where there were two or 
more systems of internal law relating to the formal validity of wills. 
This would include such countries as Canada and the United States. 
Under the British statute, the courts would look, in the cases of these 
two countries, to the province or state with which the testator was most 
closely connected. The Conference felt that the British provision might 
prove difficult to apply and therefore did not include it in the Uniform 
Act. 

The advantages of most of the changes adopted by the Conference 
are obvious. However, two require comment. 

1. The Elimination of Renvoi 

The doctrine of renvoi requires that a reference to a law of a counrty 
means a reference to the whole of its law, including its private inter- 
national law. Thus, if a judge in Ontario were hearing a case and was 



20 

referred by Ontario law to the law of Italy and the Italian law refers 
it back to Ontario, the judge must apply Ontario law. The reference 
to the Italian law was to the whole of its law, not just its internal law. 
The application of the rules of Italian private international law resulted 
in a sending back or remission for the application of Ontario law. The 
doctrine becomes more complicated when a third country becomes 
involved. In the above example, in working out the law to be applied, 
(he Ontario judge might find that the Italian law referred not back to 
the law of Ontario but to the law of England. 

The doctrine of renvoi has been much criticized. (See, for example, 
Cheshire's Private International Law, 7th ed., 1965, at p. 55 et seq.) 
It is difficult to apply as it requires the judge seized of the matter to 
decide how the court of a foreign country would apply the private 
international law of that country. There may be further difficulties if 
the rules of the foreign country refer to the national law of the person 
concerned. What is meant by "national law" is not clear, particularly 
with respect to countries which are federal in nature. 

Furthermore, the doctrine may be objected to on principle. Instead 
of the law of the country seized of the particular matter determining the 
choice of law rule, the choice is made by the law of the foreign country. 
In addition, there are problems with respect to uniformity of results in 
applying the doctrine. 

If the provisions of the Uniform Act are accepted, the doctrine is 
eliminated. When an Ontario judge is referred by Ontario law to the 
law of another country, he will be referred to the internal law of that 
country only. The choice of law will have been made at that point. 

The comments of Professor J. G. Castel of Osgoode Hall Law School 
on this subject are appropriate. He made these in a submission to the 
Conference on Uniformity and they are set out in the Proceedings of the 
1966 meeting of the Conference at pages 131-132. He said: 

"I support this change as it is intended to eliminate the problem 
of renvoi. Generally speaking, advocates of the theory of renvoi 
exclude from its sphere of application the manner and formalities 
of making a will. (Contra Ross v. Ross (1894) 25 S.C.R. 307 on 
appeal from Quebec and many English cases.) On the other hand, 
as concerns the intrinsic validity and effect of a will, support will 
be found for the application of the conflict of laws rules of the place 
referred to by the forum on the ground that such an approach 
favours uniformity of distribution. In Canada, however, there are, 
to my knowledge, no reported decisions on this question. 

As an advocate of the 'substantive reference' I believe that 
s. 38 (c) should be adopted. Furthermore, this provision is in 
conformity with the Hague Convention on the Conflict of Laws 
Relating to the Form of Testamentary Dispositions concluded on 
October 5, 1961, and the U.K. Wills Act of 1963 that implements 
the Hague Convention and gives effect to the Fourth Report of the 
Private International Law Committee (1958 Comnd. 491) appointed 
by the Lord Chancellor. I am sure that Quebec would look favour- 



21 

ably upon this disposition of the problem of renvoi as it relates to 
wills". 

2. Changes as to Choice of Law 

Domicile of origin has been dropped and, instead, nationality has 
been made a connecting factor. It is generally felt that domicile of 
origin is too remote a factor to be considered as relevant for choice of 
law. The Hague Convention of 1961 and the United Kingdom Wills Act 
of 1963 excluded it. The Conference on Uniformity agreed with this 
result. On the other hand, the nationality of the testator when he 
makes the will can well be taken to be a current connecting factor at 
that time. Both Dr. Castel and Professor Gordon C. Bale, of the Law 
Faculty of Queen's University, supported these changes, in comments 
quoted in the 1966 Uniformity Conference Proceedings. 

The inclusion of the law of the place where the testator had his 
"habitual residence" when the will was made, in addition to that of his 
domicile at that time, is intended to remedy deficiencies with respect 
to the meaning of domicile. Private international law has developed 
very technical rules with respect to the acquisition and loss of domicile, 
which at times produce unreal and unfortunate results. 

Returning to the example given at the beginning of this Part at 
page 14, a different result now will be reached if the 1966 Uniform Act 
were adopted in Ontario. In determining the formal validity of the will 
as to movables, the court would look to the law of I tab', Manitoba, 
Quebec and Florida. 

Conclusion 

The Commission considers that Part 11, of the Uniform Wills Act, 
as it was revised in 1966, is an improvement over the existing legislation 
and accordingly recommends its adoption. The Commission further 
recommends that, in the event its recommendation with respect to 
holograph wills is accepted, the law with regard to movables be made 
applicable to immovables. 

CHAPTER V 

UNIFORM PROVISIONS OMITTED 

The Commission does not recommend the inclusion of sections 21 (3), 
31, 32, 34 and 37 of the Uniform Act. The last of these is a transitional 
provision with respect to Part II of the statute and is not necessary in 
view of section 42 of the proposed enactment. Section 42 is an overall 
transitional provision and would apply to Part II. 

The other four omitted provisions require comment. They deal 
with the following subjects: 

1. Section 21 (3) Ademption where commingling; 

2. 31 Charitable trusts; 

3. 32 Devises of estates tail; 

4. 34 Illegitimate children. 



22 

1. Section 21 (3) Ademption where commingling 

As the law stands at present, a bequest of the proceeds of a sale 
will be effective so long as the proceeds retain a form by which they can 
be identified as such. However, if the testator mixes the proceeds 
with his other funds, the gift is adeemed. 

Section 21 (3) is designed to prevent ademption in such cases of 
commingling. 

The Bar Committee made a recommendation, with which the 
Commission agrees, that the section be omitted for the reasons set out 
in the commentary on the proposed section 20 in Chapter VI. 

2. Section 31 Charitable Trusts 

This section is intended to reverse the common law rule enunciated 
in Chichester Diocesan Fund and Board of Finance v. Simpson, [1944] 
A.C. 341. In that case a trust for "charitable or benevolent" purposes 
was held invalid on the ground that it was not necessarily restricted 
to charitable objects. It therefore failed on the grounds of uncertainty. 
If it had been construed as a purely charitable purpose trust, it would 
have been valid as such a trust will not fail for uncertainty where a 
general intention can be found to give to charity. 

The Bar Committee recommended that this provision be included 
in the proposed statute for the reason that the wishes of the testator 
would be more likely to prevail. The Commission, however, has initiated 
a study into the law of trusts generally and, apart from awaiting the 
outcome of that study, it would seem desirable that, since this matter 
involves both testamentary and inter vivos trusts, it should be dealt with, 
if at all, in The Trustee Act. 

3. Section 32 Devises of Estates Tail 

This section is a restatement of section 35 of the present legislation. 

It is intended to prevent the lapse of a devise of an estate in fee 
tail where the beneficiary predeceases the testator and leaves issue who 
survive the testator. 

Since it has been impossible to create an estate in fee tail in Ontario 
since 1956 by virtue of section 4 of The Conveyancing and Law of Property 
Act (R.S.O. 1960, c. 66), a provision such as section 32 could be of no 
relevance in this province. Accordingly, the Commission recommends 
its omission. 

4. Section 34 Illegitimate Children 

As Ontario law now stands, an illegitimate child is not recognized, 
except in special circumstances, as a "child" under a testamentary dis- 
position, although, of course, a testator can always make a specific pro- 
vision for such a child. 

From 1929 to 1957, the Uniform Act contained the following pro- 
vision : 



23 

"31. Every illegitimate child of a woman shall be entitled to take 
under a testamentary gift by or to her or to her children or 
issue the same benefit as he would have been entitled to if 
legitimate, unless a contrary intention appears by the will." 

Pursuant to that section, an illegitimate child was given the status 
of a legitimate child under: 

(a) a will made by his mother; and 

(b) wills in which the mother, her children or issue were bene- 
ficiaries. 

When Part II of the Act was revised in 1957, the above provision 
was replaced by the following one: 

"34. In the construction of testamentary dispositions, except when 
a contrary intention appears by the will, an illegitimate child 
shall be treated as if he were the legitimate child of his mother." 

Section 34 extended the status of the illegitimate child to any will, 
although his treatment as legitimate was confined to his relationship 
with his mother. The result would appear to be the same as under the 
earlier section 31. 

Every jurisdiction which has adopted the uniform legislation has 
included the illegitimacy provision in its statute. 

As a matter of social policy, there is much to be said for including 
this provision. It would advance the status of the illegitimate child. 
He undoubtedly suffers enough from his circumstances and this would, 
in some small measure, alleviate his position. The trend in law is to 
improve that position. This may be seen in the provisions of The Legiti- 
macy Act (S.O., 1961-62, c. 71) and section 27 of The Devolution of Estates 
Act (R.S.O. 1960, c. 106, as amended 1961-62, c. 34). Under the latter, 
an illegitimate child, on an intestacy, has been given a statutory right 
of inheritance with respect to his mother's estate providing the mother 
leaves no legitimate issue surviving her. 

On the other hand, there are difficulties in the administration of 
estates in ascertaining whether or not there are illegitimate children. 
In addition to that, the proposed provision should lead to a line of ques- 
tioning on taking instructions for a will of a testatrix which might be 
offensive to her. It would appear that the solicitor would have some 
obligation to point out the construction that would be placed, for example, 
on the word "children" under this provision. This is the most delicate 
kind of inquiry. These objections can be avoided by having the existing 
law remain as it is and leaving it to the testator, if he or she wishes to 
benefit an illegitimate child, to make specific provision to that effect. 

The Commission has had advance notice of a proposal in the study 
prepared for its Family Law Project dealing with the position of illegiti- 
mate children generally. In order that the Commission may examine 
the overall ramifications of illegitimacy with a view to general reform in 



24 

this area, it is reserving for the time being any decision on illegitimacy 
in testate succession. Accordingly, the Commission does not at this 
time recommend the adoption of section 34 of the Uniform Act. 

CHAPTER VI 

SECTION BY SECTION COMMENTARY 
ON THE PROPOSED ACT 

In this Chapter, the statute proposed by the Commission is set out 
with a section by section commentary. 

THE WILLS ACT, 1968 
1. In this Act, "will" includes 

(a) a testament; 

(b) a codicil; 

(c) an appointment by will or by writing in the nature of a 
will in exercise of a power; and 

(d) any other testamentary disposition. 

This is identical to section 2 of the Uniform Act. 

It is also the same as section 1 (e) of the present Ontario statute, 
except that it omits the reference to dispositions of the custody and 
tuition of any child by virtue of The Infants Act. Since 1923, The In- 
fants Act has not contained a provision authorizing the testamentary 
disposition of the custody and tuition of children. There is, however, 
some authority to the effect that such a right of disposition still exists 
by implication. (See C.E.D., vol. 9, at p. 521; Re McPherson, [1945] 
O.W.N. 533.) However, it seems clear that the amendment to The 
Infants Act in 1923 was intended to eliminate such rights. This result 
would probably have been obtained if The Wills Act had been amended 
at that time to omit the reference in the definition of "will" to testa- 
mentary dispositions of the custody and tuition of children by virtue of 
The Infants Act. The Commission recommends that the deletion be 
made now. It also recommends that The Infants Act be amended to 
make it clear that this right no longer exists. 

The other definitions contained in section 1 of the present statute 
have been omitted. It was the Bar Committee's opinion, with which 
the Commission agrees, that the inclusion of these definitions was not 
necessary for three reasons: 

1. the present substantive law makes these general definitions 
redundant; 

2. where a statutory definition has been considered advisable for 
the purpose of a particular section, it has been placed in that 
section (e.g., "mortgage" is defined in section 32); 



25 

3. no province has included any of these omitted general defini- 
tions when enacting statutes modelled on the Uniform Act. 

PART I 

GENERAL 

2. A person may by will devise, bequeath or dispose of all 
real and personal property, (whether acquired before or after 
making his will), to which at the time of his death he is entitled 
either at law or in equity, including, 

(a) estates pur autre vie, whether there is or is not a special 
occupant and whether they are corporeal or incorporeal 
hereditaments; 

(b) contingent, executory or other future interests in real 
or personal property, whether the testator is or is not 
ascertained as the person or one of the persons in whom 
those interests may respectively become vested, and 
whether he is entitled to them under the instrument by 
which they were respectively created or under a disposi- 
tion of them by deed or will; and 

(c) rights of entry, whether for conditions broken or other- 
wise. 

This is the same as section 3 of the Uniform Act, except that, in 
clause (c) y the words "whether for conditions broken or otherwise" have 
been added. These additional words follow the wording in the correspond- 
ing section of the present Wills Act, section 8. Owing to this specific refer- 
ence to rights of entry for condition broken in the present Wills Act, 
there never has been any question as to their devisability under that 
statute. However, there is considerable doubt as to the assignability 
inter vivos of such rights of entry. Such assignments are governed by 
section 10 of The Conveyancing and Law of Property Act, which refers 
only to a "right of entry". (See Laskin, Cases and Notes on Land Law, 
Revised Edition, 1964, at pp. 330-331 for a discussion of the case law 
on this matter.) To ensure that rights of entry for condition broken 
are devisable, the Commission considers that it would be wise to follow 
the wording of the present Act in this respect. 

Section 2 of the proposed statute differs from section 8 of the present 
enactment in two respects: 

1. It omits "Subject to The Devolution of Estates Act and The 
Accumulations Act". 

2. It omits "and which, if not so devised, bequeathed, or disposed 
of, would devolve upon his heirs, or upon his executor or 
administrator". 

Insofar as the first omission is concerned, the Bar Committee 
considered that the inclusion of such words was superfluous. As to the 
second omission, the Bar Committee believed that the insertion of those 



26 

words would create a doubt as to whether an illegitimate child could 
make a will. The Commission agrees with the Bar Committee that both 
omissions are desirable. 

3. A will is valid only when it is in writing. 

4. — (1) Subject to sections 5 and 6, a will is not valid unless, 

(a) at its end it is signed by the testator or signed in his 
name by some other person in his presence and by his 
direction; 

(b) the testator makes or acknowledges the signature in 
the presence of two or more attesting witnesses present 
at the same time; and 

(c) two or more of the attesting witnesses subscribe the will 
in the presence of the testator. 

(2) Where witnesses are required by this section, no form of 
attestation is necessary. 

Sections 3 and 4 (1) are the same as sections 4 and 5 of the Uniform 
Act and correspond to section 11 (1) of the Ontario Wills Act. Section 
4 (2) is not in the former but is in the latter. The Commission considers 
that it should be included in the proposed statute. The Bar Committee 
preferred the general structure of sections 3 and 4 to the provisions of 
section 11 (1) and the Commission agrees. 

In the event that the Commission's recommendation in favour of 
holograph wills is not implemented, the reference in section 4 to section 
6 should be deleted. 

Section 4 (1) (a) contains the words "in his name". These words 
have been omitted from the Manitoba statute. The acceptance of the 
uniform provision would result in a change of the law of Ontario as 
enunciated by Middleton, J. in Deeley v. Green (1929), 64 O.L.R. 535, 
where it was held that a person signing on behalf of the testator might 
do so in his own name rather than that of the testator. The Northwest 
Territories have substituted the words "on his behalf" for the words 
"in his own name". The Northwest Territories' wording would appear 
not to affect the decision in Deeley v. Green. The Bar Committee was 
doubtful whether, in the interest of uniformity the words "in his name" 
should be accepted or whether the Territories' wording should be followed, 
leaving unchanged the law in Deeley v. Green and permitting validity in 
the case of a technical error. The Commission considers that the 
advantage is with uniformity and so recommends. 

Like section 11 of the present enactment, the proposed section 
does not require attesting witnesses to subscribe the will in the presence 
of each other. Both British Columbia and Prince Edward Island have 
such a requirement (although only the former has enacted the Uniform 
Act). Both the Bar Committee and the Commission consider that the 



27 

proposed section be adopted in the interest of uniformity. Omitting 
this particular requirement is not likely to result in fraud in view of the 
fact that the testator is still required to sign or acknowledge his signature 
in the presence of two or more witnesses present at the same time. 
On the other hand, it may be that the omission of the requirement will 
save some wills from falling to a technicality that is certainly not known 
by the public. 

5. — (1) A member of the Canadian Forces while placed on 
active service pursuant to the National Defence Act y or a member 
of any other naval, land or air force while on active service, or a 
mariner or a seaman when at sea or in the course of a voyage, 
may make a will by a writing signed by him or by some other 
person in his presence and by his direction without any further 
formality or any requirement of the presence of or attestation or 
signature by a witness. 

(2) For the purpose of this section a certificate purporting 
to be signed by or on behalf of an officer having custody of the 
records certifying that he has custody of the records of the force 
in which a person was serving at the time the will was made, 
setting out that the person was on active service at that time, 
is prima facie evidence of that fact. 

(3) For the purposes of this section if a certificate under 
subsection (2) is not available, a member of a naval, land or air 
force is deemed to be on active service after he has taken steps 
under the orders of a superior officer preparatory to serving 
with or being attached to or seconded to a component of such a 
force that has been placed on active service. 

Section 5 is, with two exceptions, the same as section 6 of the Uniform 
Act and corresponds to section 13 of the Ontario statute. It differs 
from the Uniform Act in that two changes have been made in the wording 
of subsection (2) : 

1. "purporting" is related to the signature on the certificate 
rather than the having custody of the force's records and the 
certificate must now certify that the officer has custody of those 
records; and 

2. "prima facie evidence" has been substituted for "sufficient 
proof". ' 

The Commission considers that the substituted wording is sounder. 
Prima facie evidence is, of course, rebuttable. The Bar Committee 
recommended both changes. 

Subsections (2) and (3) of the proposed section, dealing with proof 
of "active service" have no counterpart in the present statute. 

As to the meaning of "active service", the Commission was informed 
by Brigadier W. J. Lawson, the Judge Advocate General, in a letter 
dated May 25th, 1967: 



28 

"The Canadian Forces or any component unit, element or 
member thereof may be placed on active service by the Governor 
in Council pursuant to section 32 of the National Defence Act. 
This is done by means of an Order in Council. For example, 
the components of the Canadian Forces known as the regular forces 
were placed on active service by Order in Council P.C. 4365 of 
9 September, 1950 and they are still on active service until such 
time as this Order in Council is revoked . . . 

Insofar as a member of any other force is concerned, it may 
well be that the foreign country to whom a force belongs, does not 
have the same concept of 'placing on active service', or that the 
means of placing them on 'active service' or the equivalent is 
materially different from that used by the Canadian Forces." 

Subsection (2) of the present section 13, which validates wills made 
by servicemen and seamen under 21 has its counterpart in section 8 of 
the proposed enactment. 

6. A testator may make a valid will wholly by his own hand- 
writing and signature, without formality, and without the 
presence, attestation or signature of a witness. 

This is section 7 of the Uniform Act and gives validity to holograph 
wills. There is no counterpart in the present statute. 

The advantages and disadvantages of giving validity to holograph 
wills are dealt with fully in Chapter II of the Commentary. 

It should be noted that the proposed section 7, which deals with 
the placing of the testator's signature, is made expressly applicable to 
holograph wills. 

7. — (1) In so far as the position of the signature is concerned, 
a will, whether holograph or not, is valid if the signature of the 
testator, made either by him or the person signing for him is 
placed at or after or following or under or beside or opposite to 
the end of the will so that it is apparent on the face of the will 
that the testator intended to give effect by the signature to the 
writing signed as his will. 

(2) A will is not rendered invalid by the circumstance that, 

(a) the signature does not follow or is not immediately 
after the foot or end of the will; or 

(b) a blank space intervenes between the concluding words 
of the will and the signature; or 

(c) the signature, 

(i) is placed among the words of a testimonium 
clause or of a clause of attestation, or 



29 

(ii) follows or is after or under a clause of attestation 
either with or without a blank space intervening, 
or 

(iii) follows or is after or under or beside the name of 
a subscribing witness; or 

(d) the signature is on a side or page or other portion of the 
paper or papers containing the will on which no clause 
or paragraph or disposing part of the will is written above 
the signature; or 

(e) there appears to be sufficient space on or at the bottom 
of the preceding side or page or other portion of the same 
paper on which the will is written to contain the sig- 
nature. 

(3) The generality of subsection (1) is not restricted by the 
enumeration of circumstances set out in subsection (2), but 
a signature in conformity with sections 4, 5 or 6 or this section 
does not give effect to, 

(a) a disposition or direction that is underneath the sig- 
nature or that follows the signature; or 

(b) a disposition or direction inserted after the signature 
was made. 

This is the same as section 8 of the Uniform Act except that: 

1. it has been expressly made applicable to holograph wills; and 

2. after clauses (a), (b) and (c) of subsection (2), "or" has been 
inserted. 

The content of the proposed section is the same as that of sec- 
tion 11 (2) of the present statute. The Bar Committee preferred the 
arrangement in the uniform legislation and the Commission agrees. 

If the Commission's recommendation as to holograph wills is not 
implemented, the reference in subsection (1) of the proposed section 7 
should be deleted as should the reference to section 6 in subsection (3). 

8. — (1) A will made by a person who is under the age of 
twenty-one years is not valid unless at the time of making the 
will the person, 

(a) is or has been married; 

(b) is contemplating marriage and the will states that it 
is made in contemplation of marriage to a named person 
provided that such a will shall not be deemed to be valid 
unless and until the marriage to the named person takes 
place, or 



30 

(c) is a member of a component of the Canadian Forces, 

(i) that is referred to in the National Defence Act as 
a regular force, or 

(ii) while placed on active service under the National 
Defence Act; or 

(d) is a mariner or seaman. 

(2) A certificate purporting to be signed by or on behalf of 
an officer having custody of the records certifying that he has 
custody of the records of the force in which a person was serving 
at the time the will was made, setting out that the person was 
at that time a member of a regular force or was on active service 
within clause (c) of subsection (1), is prima facie evidence of that 
fact. 

(3) A person who has made a will under subsection (1) may, 
while under the age of twenty-one years, revoke the will. 

Under sections 10 and 13 (2) of the present statute, the only persons 
under 21 who can validly execute a will are minor servicemen, mariners 
and seamen. 

The proposed section 8 is the same as section 9 of the Uniform Act, 
with two exceptions. Under section 9 of the Uniform Act, minors who 
are or who have been married would also be given testamentary capacity. 
The Bar Committee was in favour of this extension of capacity. It 
believed, however, that it should be further extended to minors contem- 
plating marriage. The Commission agrees to this suggestion and 
accordingly section 9 (1) of the uniform legislation has been revised 
to take this proposal into account. It will be noted that a will made 
by a minor in contemplation of marriage will only be valid if: 

1. the will states that it is made in contemplation of marriage to 
a named person; and 

2. the marriage takes place. 

This enlargement of testamentary capacity represented by the 
proposed section 8 is in line with section 13 of The Infants Act which 
provides that an infant upon or in contemplation of marriage, with the 
sanction of the Supreme Court, may make a valid settlement. 

It may be that there is a case to be made for a general lowering of 
the age requirement for testamentary capacity. Our Commission is 
making an overall study of the age of majority and, once that study 
has been completed, may make a further recommendation on this point. 

Subsection (2) has been revised by substituting u prima facie" 
evidence for "sufficient proof" and altering the wording with respect 
to the giving of the certificate so that it corresponds with the revised 
section 5 (2). 



31 

9. No appointment made by will in exercise of any power 
is valid unless the appointment is executed in the manner here- 
inbefore required, and every will executed in the manner herein- 
before required is, so far as respects the execution and attesta- 
tion thereof, a valid execution of a power of appointment by will, 
notwithstanding it has been expressly required that a will made 
in exercise of such power shall be executed with some additional 
or other form of execution or solemnity. 

This is section 12 of the present statute. Our Commission prefers 
that provision to section 10 of the Uniform Act, although the Bar Com- 
mittee thought otherwise. 

The present provision makes it clear that an appointment made 
by will must comply with the statute. If it does, it will be a valid exercise 
of the power notwithstanding that the donor of the power imposed 
other formalities. On the other hand, the uniform legislation merely 
states an exercise of a power by will in compliance with the statute 
shall be valid notwithstanding that the donor of the power imposed 
other formalities. The uniform legislation does not say that the exercise 
of the power will be invalid if it does not meet the requirements of the 
statute. There may be occasions when the statutory requirements are 
not met and the requirements of the donor are. The uniform provision 
does not deal with this point. The Commission consequently prefers 
the present provision. 

10. A will made in accordance with this Act is valid without 
other publication. 

This is the same as section 11 of the Uniform Act and is to the same 
effect as section 14 of the present enactment. 

11. Where a person who attested a will was at the time of 
its execution or afterward has become incompetent as a witness 
to prove its execution, the will is not on that account invalid. 

This is the same as section 12 of the Uniform Act and is to the same 
effect as section 15 of the present enactment. 

12. — (1) Where a will is attested by a person to whom or to 
whose then wife or husband a beneficial devise, bequest or other 
disposition or appointment of or affecting real or personal prop- 
erty, except charges and directions for payment of debt, is thereby 
given or made, the devise, bequest or other disposition or ap- 
pointment is void so far only as it concerns, 

(a) the person so attesting; or 

(b) the wife or the husband or a person claiming under any 
of them; 

but the person so attesting is a competent witness to prove 
the execution of the will or its validity or invalidity. 



32 

(2) Where a will is attested by at least two persons who are 
not within subsection (1) or where no attestation is necessary, 
the devise, bequest or other disposition or appointment is not 
void under that subsection. 

(3) Notwithstanding anything in this section, where a court 
is satisfied that the person so attesting or the wife or the husband 
did not exercise any improper or undue influence upon the 
testator, the devise, bequest or other disposition or appointment 
shall not be void. 

(4) Where a will is signed for the testator by another per- 
son in accordance with section 4, to whom or to whose then 
wife or husband a beneficial devise, bequest or other disposition 
or appointment of, or affecting real or personal property, except 
charges, and directions for payment of debts, is thereby given 
or made, the devise, bequest, or other disposition is void so far 
only as it concerns the person so signing, or the wife or husband, 
or person claiming under any of them, but the will is not invalid 
for that reason. 

The proposed subsections (1) and (2) are the same as section 13 
of the Uniform Act. They contain two changes of substance from the 
corresponding provision in the present statute, section 16. 

1. The cases under the present enactment and those jurisdictions 
having a similar provision establish that, in order for there 
to be a disqualification on the part of a beneficiary where his 
spouse acts as an attesting witness, the parties must have been 
married at the date of the making of the will. This is made 
explicit in the running-head in section 13 (1) of the Uniform Act. 

2. Cases like Re Limond, [1915] 2 Ch. 240, and Re Priest, [1944] 
Ch. 58, indicate that an attesting witness, who was super- 
numerary in the sense that there were two other attesting 
witnesses without him, may nonetheless be disqualified from 
taking a benefit under the will. Subsection (2) of the proposed 
section 12 reverses this rule. 

Subsections (3) and (4) are neither in the uniform legislation nor 
the present statute. Subsection (3) is intended to make subsection (1) 
subject to the judgment of the court where a beneficiary alleges that no 
improper or undue influence was brought to bear upon the testator. 
There may well be cases where it would be unfair to strike down the gift. 
The onus would be on the beneficiary to show that he had not acted 
improperly. 

Subsection (4) is similar to a provision in the Manitoba statute. 
It is designed to apply the principle contained in subsection (1) to 
situations where a will is signed for the testator by another person in 
accordance with section 4. 

The Bar Committee Report recommends subsection (4) but did not 
give consideration to a provision such as subsection (3). The Commis- 
sion recommends both. 



33 

13. Where real or personal property is charged by a will with 
a debt and a creditor or the wife or husband of a creditor whose 
debt is so charged attests a will, the person so attesting, not- 
withstanding such charge, is a competent witness to prove the 
execution of the will or its validity or invalidity. 

This is the same as section 14 of the Uniform Act and to the same 
effect as section 17 of the present statute. 

The Bar Committee recommended that there should be added to 
the section, the words "and the charging provision is not, by reason only 
of such attestation, invalid". Such words were added in the case of the 
Northwest Territories statute. The Commission felt that such a pro- 
vision was not necessary in view of the exception contained in the pro- 
posed section 12 (1). 

14. A person is not incompetent as a witness to prove the 
execution of a will, or its validity or invalidity solely because 
he is an executor. 

This is the same as section 15 of the Uniform Act and is to the same 
effect as section 18 of the present statute. 

15. A will or part of a will is revoked only by, 

(a) marriage, subject to section 16; 

(b) another will made in accordance with the provisions of 
this Act; 

(c) a writing, 

(i) declaring an intention to revoke, and 

(ii) made in accordance with the provisions of this 
Act governing making of a will; or 

(d) burning, tearing or otherwise destroying it by the 
testator or by some person in his presence and by his 
direction with the intention of revoking it. 

This is the same as section 16 of the Uniform Act and to the same 
effect as section 22 of the existing Act. 

16. A will is revoked by the marriage of the testator except 
where, 

(a) there is a declaration in the will that it is made in con- 
templation of the marriage; or 

(b) the wife or husband of the testator elects to take under 
the will, by an instrument in writing signed by the wife 
or husband and filed within one year after the testator's 
death in the office of the Registrar of the Supreme 
Court ; 



34 

(c) the will is made in exercise of a power of appointment 
of real or personal property which would not in default 
of the appointment pass to the heir, executor or adminis- 
trator of the testator or to the persons entitled to the 
estate of the testator if he died intestate. 

Apart from clause (b), this is the same as section 17 of the Uniform 
Act. Including clause (b), the proposed section is to the same effect as 
section 20 of the present statute. 

The right of election conferred by clause {b) is occasionally exercised. 
The Registrar of the Supreme Court of Ontario reported elections under 
the clause as follows: 

1958 11 

1959 15 

1960 6 

1961 9 

1962 10 

1963 5 

1964 9 

The Bar Committee recommended the retention of clause (b) since 
there was evidence of regular elections. It could see no reason for 
prohibiting a spouse from making an election. The provision was 
designed to meet the interest of the spouse. The Commission agrees. 

17. A will is not revoked by presumption of an intention 
to revoke it on the ground of a change in circumstances. 

This is the same as section 18 of the Uniform Act and is to the same 
effect as section 21 of the present Act. 

18. — (1) Subject to subsection (2), unless an alteration that 
is made in a will after the will has been made is made in accord- 
ance with the provisions of this Act governing making of a will, 
the alteration has no effect except to invalidate words or meanings 
that it renders no longer apparent. 

(2) An alteration that is made in a will after the will has 
been made is validly made when the signature of the testator 
and subscription of witnesses to the signature of the testator 
to the alteration, or, in the case of a will that was made under 
section 5 or section 6, the signature of the testator, are or is made, 

(a) in the margin or in some other part of the will opposite 
or near to the alteration; or 

(b) at the foot or end of or opposite to a memorandum 
referring to the alteration and written in some part of 
the will. 

This is the same as section 19 of the Uniform Act and is to the same 
effect as section 23 of the present statute. The uniform section is an 



35 

effective restatement of section 23, removing a double negative that 
has always rendered the Ontario section difficult to understand readily. 

The proposed subsection (2) refers to sections 5 and 6, which deal 
with service and holograph wills. In these instances, an alteration would 
be valid simply by the testator affixing his signature opposite the altera- 
tion. This is true even though the person made a service will and then 
altered it after he had become a civilian. 

19. — (1) A will or part of a will that has been in any manner 
revoked is revived only, 

(a) by a will made in accordance with the provisions of this 
Act; or 

(b) by a codicil that has been made in accordance with the 
provisions of this Act, 

that shows an intention to give effect to the will or part that 
was revoked, or 

(c) by re-execution thereof with the required formalities, 
if any. 

(2) Except when a contrary intention is shown, when a will 
which has been partly revoked and afterward wholly revoked, 
is revived, the revival does not extend to the part that was revoked 
before the revocation of the whole. 

Apart from clause (c), this is the same as section 20 of the Uniform 
Act. Including clause (c), the proposed section is to the same effect as 
section 24 of the present statute. 

The Bar Committee was of the opinion that the right of "re-execu- 
tion" should be retained, as has been done in Alberta. Re-execution 
contemplates the situation where a testator wishing to revive a revoked 
will, re-executes the revoked document with the required formalities. 
In Alberta, a clause was added providing for revival "by re-execution 
thereof with required formalities, if any; or". This was inserted as 
clause (a). For the sake of retaining uniformity with the other provinces, 
in the order of the clauses, this additional clause should be inserted as (c). 
The Commission so recommends. 

20. — (1) A conveyance of or other act relating to real or 
personal property comprised in a devise or bequest or other 
disposition, made or done after the making of a will, does not 
prevent operation of the will with respect to any estate or interest 
in the property that the testator had power to dispose of by 
will at the time of his death. 

(2) Except when a contrary intention appears by the will, 
where a testator at the time of his death has a right or chose 
in action or equitable estate or interest that was created by a 
contract respecting a conveyance of, or other act relating to, 



36 

real or personal property that was comprised in a devise or be- 
quest, made or done after the making of a will, the devisee or 
donee of that real or personal property takes the right or chose 
in action or equitable estate or interest of the testator. 

Subsections (1) and (2) are the same as subsections (1) and (2) of 
section 21 of the Uniform Act. Subsection (1) is a restatement of sec- 
tion 25 of the present statute. 

Subsection (2) would bring a change in the substantive law of 
Ontario and was recommended for adoption by the Bar Committee. 
This subsection reverses the equitable rule that the devise is adeemed by 
the application of the doctrine of notional conversion. The Com- 
mission agrees with this proposed change. 

Subsection (3) of section 21 of the Uniform Act has been omitted. 
It provides that: 

". . . where the testator has bequeathed proceeds of the sale of 
property and the proceeds are received by him before his death, 
the bequest is not adeemed by commingling the proceeds with the 
funds of the testator if the proceeds are traced into those funds". 

The Bar Committee recommended against the inclusion of sub- 
section (3) for two reasons. 

1. The commingling might be looked upon as a change of intention 
on the part of the testator. 

2. There might be difficulty in deciding what rules should be 
applied if the testator had withdrawn money from the combined 
fund. 

The Commission agrees that subsection (3) should be omitted. 
The proposed section 20 does not deal with the matter of ademption fully 
and it may be that the subject should be considered further by the 
Commissioners on Uniformity, who, at such a time, might consider the 
problems created by subsection (3). All the jurisdictions, except 
Manitoba, which have enacted the uniform legislation, have left out sub- 
section (3). All, with the exception of the Yukon, have enacted sub- 
section (2). 

21. When a will has been revived in the manner described 
in section 19 the will is deemed to have been made at the time 
at which it was so revived. 

22. Except when a contrary intention appears by the will, 
a will speaks and takes effect as if it had been made immediately 
before the death of the testator with respect to, 

(a) the real and personal property; and 

(b) the right or chose in action or equitable estate or interest 
under subsection (2) of section 20. 



37 

Sections 21 and 22 are similar to subsections (1) and (2) of section 22 
of the Uniform Act. Slight alterations have been made, as explained 
below. 

The Commission believed that the two subsections of the uniform 
legislation should be made two separate sections as each dealt with a 
different subject. Subsection (1) deals with the time of making of a will 
and subsection (2) with the time at which the will "speaks" or takes 
effect. 

Section 21 is similar to section 19 (10) of the present statute, the 
latter, however, being confined in its application to the section in which 
it is contained. The proposed provision is a codification of the case 
law on revival. The Commission has altered the uniform provision by 
omitting the reference to "re-executed". The uniform provision appears 
to include the republication by codicil of an unrevoked will. By the 
common law, such a will is only deemed to have been made at the time of 
republication if the testator's intentions would not be defeated. The 
Commission considers that the common law should continue to operate 
in this way. Furthermore, it is not accurate to speak of the "re-execu- 
tion" of a will by codicil. A will is not, in technical terms, re-executed 
by codicil. It is either revived or republished, depending upon whether 
the will was revoked or not. The Commission recommends that sec- 
tion 21 be confined to revival and not be extended to republication. 

Section 22 corresponds with section 26 (1) of the present statute. 
Section 22 supports the Ontario case law which is directly opposed to the 
English authorities. The Ontario cases establish that our present sec- 
tion 26 (1) has a two-fold purpose. According to Middleton, J. in Re 
Rogers (1920), 47 O.L.R. 82, it is effective not only to bring after-acquired 
property into the will, but it is also determinative, in the absence of a 
contrary intention, of whether the after-acquired property goes to the 
specific devisee or the residuary devisee. This is contrary to the English 
case law. Section 22 would therefore confirm the position taken by 
Middleton, J. 

Section 22 (b) has been changed from the uniform section so that it 
will relate properly to the proposed section 20. 

Section 22 does not incorporate section 26 (2) of the present statute, 
dealing with wills of married women. This latter provision is no longer 
needed since the passage of the Ontario Married Women s Property Act 
in 1884. 

23. Except when a contrary intention appears by the will, 
real or personal property or an interest therein that is comprised 
or intended to be comprised in a devise or bequest that fails or 
becomes void by reason of, 

(a) the death of the devisee or donee in the life-time of the 
testator; or 

(b) the devise or bequest being contrary to law or otherwise 
incapable of taking effect, 



38 

is included in the residuary devise or bequest, if any, contained 
in the will. 

This is the same as section 23 of the Uniform Act. It has two pur- 
poses : 

1. It reverses the common law rule that a lapsed or void devise 
of real property did not fall into residue but fell outside the 
will to the heir; and 

2. It codifies the common law position with respect to personal 
property. 

Thus, insofar as realty is concerned, the proposed section 23 is 
merely a restatement of section 27 of the present statute. With respect 
to personalty, there is no counterpart in the Ontario Wills Act and sec- 
tion 23 codifies the common law in this regard. 

24. Except when a contrary intention appears by the will, 
where a testator devises, 

(a) his land; 

(b) his land in a place mentioned in the will, or in the 
occupation of a person mentioned in the will ; 

(c) land described in a general manner; or 

(d) land described in a manner that would include a lease- 
hold estate if the testator had no freehold estate which 
could be described in the manner used; 

the devise includes the leasehold estates of the testator or any 
of them to which the description extends, as well as freehold 
estates. 

This is the same as section 24 of the Uniform Act. It is a restate- 
ment of section 28 of the present Act except that "land" has been sub- 
stituted for "real estate". 

25. — (1) Except when a contrary intention appears by the 
will, a general devise of, 

(a) the real property of the testator; 

(b) the real property of the testator, 

(i) in a place mentioned in the will, or 

(ii) in the occupation of a person mentioned in the 
will; or 

(c) real property described in a general manner; 



39 

includes any real property or any real property to which the 
description extends, which he has power to appoint in any 
manner he thinks proper and operates as an execution of the 
power. 

(2) Except when a contrary intention appears by the will, 
a bequest of, 

(a) the personal property of the testator; or 

(b) personal property described in a general manner; 

includes any personal property or any personal property to which 
the description extends, which he has power to appoint in any 
manner he thinks proper and operates as an execution of the 
power. 

This is the same as section 25 of the Uniform Act except that "which" 
has been substituted for "that" after the word "extends" in both sub- 
sections (1) and (2). This was the recommendation of the Bar Com- 
mittee. The Commission agrees with this change. 

The proposed section is to the same effect as section 29 of the 
present enactment. 

26. Except when a contrary intention appears by the will, 
where real property is devised to a person without words of 
limitation, the devise passes the fee simple or the whole of any 
other estate that the testator had power to dispose of by will in 
the real property. 

This is the same as section 26 of the Uniform Act and to the same 
effect as section 30 of the present enactment. The Bar Committee 
preferred the wording of the uniform legislation. It considered that the 
reference to The Devolution of Estates Act contained in section 30 is 
unnecessary and need not be included in the proposed section 26. 

27. Except when a contrary intention appears by the will, 
where property is devised or bequeathed to the "heir" or "heirs" 
of the testator or of another person, the words "heir" or "heirs" 
mean the person to whom the beneficial interest in the property 
would have gone under the law of Ontario if the testator or the 
other person died intestate. 

This is the same as section 27 of the Uniform Act, except that: 

(i) "heirs" has been added so as to retain the broader scope of the 
present Ontario provision (section 27) ; and 

(ii) subsection (2) of the Uniform Act, which provided that a "child" 
includes a person related by adoption for the purpose of the 
section, has been dropped in view of section 82 (3) of The Child 
Welfare Act, 1965. 



40 

Section 82 (3) makes an adopted child a child of the adopting 
parents for all purposes, thereby settling a judicial difference on the 
point. In suggesting that subsection (2) be omitted, the Bar Committee 
pointed out that it was not included in the British Columbia, Alberta, 
Saskatchewan, Northwest Territories and the Yukon legislation. 

The corresponding section in the present statute is section 31. 
It applies to real property only. The Bar Committee preferred the 
proposed section because it deals with property generally. The Com- 
mission agrees. 

28. — (1) Subject to subsection (2), in a devise or bequest of 
real or personal property, 

(a) the words, 

(i) "die without issue", or 
(ii) "die without leaving issue 77 , or 
(iii) "have no issue 77 ; or 

(b) other words importing either a want or failure of issue 
of a person in his lifetime or at the time of his death or 
an indefinite failure of his issue, 

means a want or failure of issue in the lifetime or at the time 
of death of that person, and do not mean an indefinite failure 
of his issue unless a contrary intention appears by the will. 

(2) This Act does not extend to cases where the words defined 
in subsection (1) import, 

(a) if no issue described in a preceding gift be born; or 

(b) if there be no issue who live to attain the age or other- 
wise answer the description required for obtaining a 
vested estate by a preceding gift to that issue. 

This is section 28 of the Uniform Act. It is to the same effect as 
section 32 of the present statute. 

The reference to estates tail in section 32 is not contained in the 
proposed section. It has been impossible to create an estate tail in 
Ontario since May 27th, 1956. In view of the transitional provisions 
of the proposed statute, it is unnecessary that the proposed section 28 
refer to estates tail. 

The word "or" has been added after section 28 (a) (i), as a matter 
of drafting. 

29. Except when there is devised to a trustee expressly or by 
implication an estate for a definite term of years absolute or 
determinable or an estate of freehold, a devise of real property 



41 

to a trustee or executor passes the fee simple or the whole of any 
other estate or interest that the testator had power to dispose 
of by will in the real property. 

This is section 29 of the Uniform Act and is to the same effect as 
section 33 of the present statute, with an improvement in wording. 

30. Where real property is devised to a trustee without 
express limitation of the estate to be taken by him and the 
beneficial interest in the real property or in the surplus rents 
and profits, 

(a) is not given to a person for life; or 

(b) is given to a person for life but the purpose of the trust 
may continue beyond his life, 

the devise vests in the trustee the fee simple or the whole of any 
other legal estate that the testator had power to dispose of by 
will in the real property and not an estate determinable when the 
purposes of the trust are satisfied. 

This is section 30 of the Uniform Act and is to the same effect as 
section 34 of the present enactment. Section 34 is made expressly 
"subject to The Devolution of Estates Act" . This proviso is probably 
unnecessary in view of section 14 of the latter statute. Section 14 
provides that nothing in the vesting section (section 13) derogates from 
any right possessed by an executor or trustee under a will. The Bar 
Committee recommended the uniform section. 

31. Except when a contrary intention appears by the will, 
where a devise or bequest is made to a child, grandshild, brother 
or sister of the testator who dies before the testator and leaves 
a spouse or issue surviving the testator, the devise or bequest 
does not lapse but takes effect as if it had been made directly 
to the persons among whom and in the shares in which the 
estate of that person would have been divisible, 

(a) if that person had died immediately after the death of 
the testator; 

(b) if that person had died intestate; 

(c) if that person had died without debts; and 

(d) if sections 11 and 12 of The Devolution of Estates Act 
had not been passed. 

Section 31 is based on section 36 of the present legislation. It 
corresponds in principle to section 33 of the Uniform Act, although it 
differs from the uniform legislation in a number of significant respects 
which are discussed in detail in Chapter III of the Report. Although 



42 

the proposed section is, for the most part, taken from the existing pro- 
vision rather than the uniform legislation, it follows the latter in two 
respects: 

1. It begins "Except when" instead of "Unless" to conform to 
drafting practice in the uniform statute; and 

2. By saving gifts from lapsing where the deceased beneficiary 
leaves surviving a spouse but no issue. 

32. — (1) Where a person dies possessed of, or entitled to, 
or under a general power of appointment by his will disposes of, 
an interest in freehold or leasehold property which, at the time 
of his death, is subject to a mortgage, and the deceased has not, 
by will, deed or other document, signified a contrary or other 
intention, 

(a) the interest is, as between the different persons claiming 
through the deceased, primarily liable for the payment 
or satisfaction of the mortgage debt; and 

(b) every part of the interest, according to its value, bears 
a proportionate part of the mortgage debt on the whole 
interest. 

(2) A testator does not signify a contrary or other intention 
within subsection (1) by, 

(a) a general direction for the payment of debts or of all the 
debts of the testator out of his personal estate or his 
residuary real or personal estate, or his residuary real 
estate; or 

(b) a charge of debts upon that estate, 

unless he further signifies that intention by words expressly or 
by necessary implication referring to all or some part of the 
mortgage debt. 

(3) Nothing in this section affects a right of a person entitled 
to the mortgage debt to obtain payment or satisfaction either 
out of the other assets of the deceased or otherwise. 

(4) In this section, "mortgage" includes an equitable mort- 
gage, and any charge whatsoever, whether equitable, statutory 
or of other nature, including a lien or claim upon freehold or 
leasehold property for unpaid purchase money and "mortgage 
debt" has a meaning similarly extended. 

This is the same as section 35 of the Uniform Act and is a restatement 
of section 37 of the present statute, with the addition of a definition of 
"mortgage" for the purposes of the section. 



43 

At common law the devisee of land was entitled to have any mort- 
gage of that land discharged out of the general assets of the estate. 
The proposed section, as does section 37 of the present Act, reverses this 
common law rule and the devisee takes the property cum onere unless 
a contrary intention appears by the will. 

33. — (1) Where a person dies after this Act takes effect, 
having by will appointed a person executor, the executor is a 
trustee of any residue not expressly disposed of, for the person or 
persons, if any, who would be entitled to that residue in the 
event of intestacy in respect to it, unless the person so appointed 
executor was intended by the will to take the residue beneficially. 

(2) Nothing in this section prejudices any right in respect 
of any residue not expressly disposed of to which, if this Act 
had not been passed, an executor would have been entitled where 
there is not any person who would be entitled to the testator's 
estate under The Devolution of Estates Act in case of an 
intestacy. 

Subsection (1) is the same as section 36 (1) of the Uniform Act and 
corresponds to section 54 (1) of The Trustee Act. Subsection (2) is the 
same as section 54 (2) of The Trustee Act and is to the same effect as 
section 36 (2) of the Uniform Wills Act, the Commission preferring the 
former wording. 

The provision reverses the common law position where, in some 
situations, the executors took beneficially and not on an express or result- 
ing trust. 

If this provision is included in new legislation, section 54 of The 
Trustee Act should be repealed. The Commission considers it more 
appropriate for the provision to be contained in The Wills Act. 

PART JI 
CONFLICT OF LAWS 

This Part is fully explained in Chapter IV of the Report. 

34. In this Part, 

(a) an interest in land includes a leasehold estate as well 
as a freehold estate in land, and any other estate or in- 
terest in land whether the estate or interest is real 
property or is personal property; 

(b) an interest in movables includes an interest in a tangible 
or intangible thing other than land, and includes per- 
sonal property other than an estate or interest in land; 

(c) "internal law" in relation to any place excludes the 
choice of law rules of that place. 



44 

This is section 38 of the Uniform Act. Clauses (a) and (b) are the 
same as clauses (a) and (b) of section 19 (1) of the present Ontario 
statute. Clause (c) is new. 

35. This Part applies to a will made either in or out of On- 
tario. 

This is section 39 of the Uniform Act and has its counterpart in 
section 19 (4) of the present legislation. 

36. — (1) The manner and formalities of making a will, and 
its intrinsic validity and effect, so far as it relates to an interest 
in land, are governed by the internal law of the place where 
the land is situated. 

(2) Subject to other provisions of this Part, the manner and 
formalities of making a will, and its intrinsic validity and effect, 
so far as it relates to an interest in movables, are governed by the 
internal law of the place where the testator was domiciled at the 
time of his death. 

This is section 40 of the Uniform Act and corresponds to subsections 
(2) and (3) of section 19 of the present Ontario statute. The proposed 
provision restricts the governing law to " internal law". 

37. — (1) As regards the manner and formalities of making 
a will of an interest in movables, a will is valid and admissible 
to probate if at the time of its making it complied with the 
internal law of the place where, 

(a) the will was made; or 

(b) the testator was then domiciled; or 

(c) the testator then had his habitual residence; or 

(d) the testator then was a national if there was in that 
place one body of law governing the wills of nationals. 

(2) Without prejudice to subsection (1), as regards the 
manner and formalities of making a will of an interest in mov- 
ables, the following are properly made: 

(a) a will made on board a vessel or aircraft of any description, 
if the making of the will conformed to the internal law 
in force in the place with which, having regard to its 
registration (if any) and other relevant circumstances, 
the vessel or aircraft may be taken to have been most 
closely connected; 

(b) a will so far as it revokes a will which under this Part 
would be treated as properly made or revokes a provision 
which under this Part would be treated as comprised 



45 

in a properly made will, if the making of the later will 
conformed to any law by reference to which the revoked 
will or provision would be treated as properly made; 

(c) a will so far as it exercises a power of appointment, if 
the making of the will conforms to the law governing 
the essential validity of the power. 

This is section 41 of the Uniform Act. Subsection (1) has its counter- 
part in section 19 (4) of the present statute and subsection (2) is new. 
The restriction to the "internal" law is new. 

In subsection (1), clauses (c) and (d) are new. Domicile of origin, 
which is included in the present section 19 (4), has been dropped. 

38. A change of domicile of the testator occurring after a 
will is made does not render it invalid as regards the manner 
and formalities of its making or alter its construction. 

This is the same as section 42 of the Uniform Act and is similar to 
section 19 (5) of the present statute. 

39. Nothing in this Part precludes resort to the law of the 
place where the testator was domiciled at the time of making a 
will in aid of its construction as regards an interest in land or 
an interest in movables. 

This is the same as section 42a of the Uniform Act and is similar 
to section 19 (6) of the present statute. 

40. Where the value of a thing that is movable consists 
mainly or entirely in its use in connection with a particular parcel 
of land by the owner or occupier of the land, succession to an 
interest in the thing under a will is governed by the law that 
governs succession to the interest in the land. 

This is the same as section 426 of the Uniform Act and is similar to 
section 19 (7) of the present statute. 

41. — (1) Where, whether in pursuance of this Part or not, 
a law in force outside Ontario is to be applied in relation to a 
will, any requirement of that law that, 

(a) special formalities are to be observed by testators answer- 
ing a particular description ; or 

(b) witnesses to the making of a will are to possess certain 
qualifications, 

shall be treated, notwithstanding any rule of that law to the 
contrary, as a formal requirement only. 



46 

(2) In determining for the purposes of this Part whether 
or not the making of a will conforms to a particular law, regard 
shall be had to the formal requirements of that law at the time 
the will was made but this shall not prevent account being 
taken of an alteration of law affecting wills made at that time 
if the alteration enables the will to be treated as properly made. 

This is the same as section 42c of the Uniform Act and has no 
counterpart in the present statute. 



PART III 

SUPPLEMENTARY 

42. — (1) Except as provided in subsection (2), this Act applies 
only to wills made after this Act comes into force; and for the 
purposes of this Act a will which is revived shall be deemed to 
be made at the time at which it is so revived. 

(2) In the case of any person dying after this Act comes into 
force, section 31 applies to his will whether it was made before 
or after this Act comes into force. 

This is the transitional provision and is similar to section 43 of the 
Uniform Act. 

As was the case with the proposed section 21 and for the same reason, 
the reference to "re-executed" in subsection (1) has been omitted. 

43. — (1) Except as provided in subsection (2), The Wills Act 
and The Wills Amendment Act, 1962-63 are repealed. 

(2) The said Acts continue in force, as if unrepealed, in 
in respect of wills made before this Act comes into force. 

This corresponds with section 44 of the Uniform Act. It is transi- 
tional and self-explanatory. 

44. This Act may be cited as "The Wills Act, 1968". 

This corresponds to section t of the Uniform Act. It is legislative 
drafting practice in Ontario to place the title section at the end of the 
statute. 



47 

CONCLUSION 

The Commission wishes to express its appreciation to the members 
of the Committee of the Wills and Trusts Sub-Section of the Ontario 
Branch of the Canadian Bar Association for their scholarly assistance. 

The Commission considers that a revised Wills Act in the form herein 
recommended would constitute a significant advance in this important 
held of law and recommends its enactment at an early date. 

All of which is respectfully submitted, 

H. Allan Leal, 

Chairman 

J. C. McRuer, 

Commissioner 

R. A. Bell, 

Commissioner 

W. Gibson Gray, 

Commissioner 

W. R. Poole, 

Commissioner 



February 5, 1968. 



APPENDIX A 



Concordance of Provisions of the Proposed Ontario Act, The Uniform 
Wills Act, and the present Ontario Wills Act 



S. 



Proposed 


Ontario 


Uniform 


1 




S. 1 


(e) 


S. 2 




2 




8 




3 




3 




11 


(1) 


4 




4 (1) 




11 


(1) 


5 




(2)' 






(1) 


— 




5 (1) 




13 


(1) 


6 


(1) 


(2) 






(3) 




(2) 


(3) 






(3) 




(3) 


6 




— 




7 




7 




11 


(2) 


8 




8 (1) 




10, 


13(2) 


9 


(1) 


(2) 




13 


(3) 




(2) 


(3) 




— 






(3) 


9 




12 




10 




10 




14 




11 




11 




15 




12 




12 (1) 




16 




13 


(1) 


(2) 




— 






(2) 


(3) 




— 




— 




(4) 




— 




— 




13 




17 




14 




14 




18 




15 




15 




22 




16 




16 (a) 




20 


(a) 


17 


(a) 


(b) 






(b) 


— 




(c) 






to 


17 


(b) 


17 




21 




18 




18 (1) 




23 




19 


(1) 


(2) 




23 






(2) 


19 (1) ( 


24 




20 


(1) (a) 




(b) 








(b) 




(c) 






— 




(2) 




24 






(2) 


20 (1) 




25 




21 


(1) 


(2) 




— 






(2) 


21 (1) 




24 




— 




(2) 




— 




22 


(1) 


22 




26 


(1) 


22 


(2) 


23 




27 




23 




24 




28 




24 




25 




29 




25 




26 




30 




26 




27 




31 




27 




28 




32 




28 




29 




33 




29 




30 




34 




30 





49] 



50 



Proposed 


Ontario 


Uniform 


31 




36 




33 




32 (1) 




37 


(i) 


35 


(1) 


(2) 






(2) 




(2) 


(3) 






(3) 




(3) 


(4) 




1 


(b) 




(4) 


33 




54 of The 
Trustee Act 


36 




34 (a) 




19 


(1) (a) 


38 


(a) 


(b) 






(b) 




(b) 


(e) 




— 






(c) 


35 




19 


(4) 


39 




36 (1) 




19 


(2) 


40 


(1) 


(2) 






(3) 




(2) 


37 (1) ( 


19 


(4) (a) 


41 


(1) (a) 




(b) 




(b) 




(b) 




to 


— 






(c) 




(d) 


— 






(d) 


(2) 




— 






(2) 


38 




19 


(5) 


42 




39 




19 


(6) 


42c 


i 


40 




19 


(7) 


Ml 


) 


41 




— 




Mt 




42 




— 




43 




43 




— 




44 




44 




— 




1 





Note 1: The proposed Ontario statute does not include the following provisions of the 
Uniform Wills Act: 

S. 21 (3) 

31 
32 
34 
37 

Note 2: The proposed Ontario statute does not include provisions which correspond 
to the following in the present legislation: 

S. 1 (a), (c) and (d) 
2-7 inc. 
9 

19 (8) and (9) 
26 (2) 
35 



APPENDIX B 

THE WILLS ACT 

Revised Statutes of Ontario, 1960 

CHAPTER 433 

as amended by 

The Wills Amendment Act, 1962-63 
(S.O., 1962-63, c. 144) 

1. In this Act, 

(a) "land" includes messuages, and all other heredita- Jetton re ~ 
ments, whether corporeal or incorporeal, chattels 

and other personal property transmissible to heirs, 
money to be paid out in the purchase of land, and 
any share of the same hereditaments and properties, 
or any of them, and any estate of inheritance, or 
estate for any life or lives, or other estate transmis- 
sible to heirs, and any possibility, right or title of 
entry or action, and any other interest capable of 
being inherited, whether the same estates, possibili- 
ties, rights, titles and interests, or any of them, are 
in possession, reversion, remainder or contingency; 

(b) "mortgage" includes any lien for unpaid purchase 
money, and any charge, encumbrance, or obligation 
of any nature whatever upon any land or tenements 
of a testator or intestate, and "mortgagee" has a 
meaning corresponding with that of mortgage; 

(c) "personal estate" includes leasehold estates and 
other chattels real, and also money, shares of govern- 
ment and other funds, securities for money (not 
being real estate), debts, choses in action, rights, 
credits, goods, and all other property, except real 
estate, which by law devolves upon the executor or 
administrator, and any share or interest therein; 

id) "real estate" includes messuages, land, rents and 
hereditaments, whether freehold or of any other 
tenure, and whether corporeal, incorporeal or per- 
sonal, and any undivided share thereof, and any 
estate, right, or interest (other than a chattel inter- 
est) therein; 

(e) "will" includes a testament, and a codicil, and an 
appointment by will, or by writing in the nature of 
a will in exercise of a power, and also a disposition by 
will and testament, or devise of the custody and 
tuition of any child, by virtue of The Infants Act,^*£2- L960 
and any other testamentary disposition. R.S.O. 
1950, c. 426, s. 1. 

I 51 1 



52 



When real 
estate sub- 
sequently 
acquired 
may pass by 
the will 



What estate 
deemed to 
pass by 
devise 



Witness 
need not 
subscribe 
in the 
presence 
of the 
testator 



WILLS BEFORE 1ST JANUARY, 1874 

2. Where a will made before, and not re-executed, repub- 
lished or revived after the 1st day of January, 1874, by any 
person dying after the 6th day of March, 1834, contains a 
devise in any form of words of all such real estate as the 
testator dies seised or possessed of, or of any part or proportion 
thereof, such will is valid and effectual to pass any land 
acquired by the devisor, after the making of such will, in the 
same manner as if the title thereto had been acquired before 
the making thereof. R.S.O. 1950, c. 426, s. 2. 

3. Where land is devised in any such will it shall be con- 
sidered that the devisor intended to devise all such estate as 
he was seised of in the same land, whether in fee simple or 
otherwise, unless it appears upon the face of such will that he 
intended to devise only an estate for life, or other estate less 
than he was seised of at the time of making the will containing 
such devise. R.S.O. 1950, c. 426, s. 3. 

4. Any will affecting land executed after the 6th day of 
March, 1834, and before the 1st day of January, 1874, in the 
presence of and attested by two or more witnesses has the 
same validity and effect as if executed in the presence of and 
attested by three witnesses; and it is sufficient if the witnesses 
subscribed their names in the presence of each other, although 
their names were not subscribed in the presence of the testator. 
R.S.O. 1950, c. 426, s. 4. 



rJedwlm & T 5 * After the 4th da y ° f Ma y» 1859 ' aild before the lst da > 

between 4th f January, 1874, every married woman might, by devise or 

JVlay, 1859, 1 i • i r • 

and bequest executed in the presence ol two or more witnesses, 

1874 ' neither of whom was her husband, make any devise or bequest 

of her separate property, real or personal, or of any rights 
therein, whether such property was acquired before or after 
marriage, to or among her child or children issue of any mar- 
riage, and failing there being any issue, then to her husband, 
or as she might see fit, in the same manner as if she were sole 
and unmarried. R.S.O. 1950, c. 426, s. 5. 



WILLS AFTER 1ST JANUARY, 1874 

^ubsSfuent 01, *>• Unless herein otherwise expressly provided, the subse- 
sections quent sections of this Act do not extend to any will made 

before the lst day of January, 1874; but every will re-executed 
or republished, or revived by any codicil, shall for the purposes 
of those sections, be deemed to have been made at the time at 
which the will was so re-executed, republished or revived. 
R.S.O. 1950, c. 426, s. 6. 

of^ictfons" 7. Sections 21, 22, 25 and 26 do not apply to the will of 
Ind 2 26 25 an Y person who died before the lst day of January, 1869, but 
do apply to the will of every person who died since the 31st 
day of December, 1868. R.S.O. 1950, c. 426, s. 7. 



53 



8. Subject to The Devolution of Estates Act and The Accu-^poseofaii 
mutations Act, every person may devise, bequeath, or dispose property 
of by will, executed in manner hereinafter mentioned, all real cc. io6, i 
estate and personal estate to which he may be entitled, at the 
time of his death, and which, if not so devised, bequeathed, or 
disposed of, would devolve upon his heirs or upon his executor 
or administrator, and the power hereby given extends to 
estates pur autre vie, whether there is or is not any special 
occupant thereof, and whether the same are corporeal or 
incorporeal hereditaments, and also to all contingent, execu- 
tory, or other future interests in any real estate or personal 
estate, whether the testator is or is not ascertained as the 
person, or one of the persons, in whom the same may become 
vested, and whether he is entitled thereto under the instru- 
ment by which the same were created, or under any disposition 
thereof by deed or will, and also to all rights of entry for 
conditions broken and other rights of entry, and also to such 
of the same estates, interests and rights respectively, and 
other real estate and personal estate, as the testator may be 
entitled to at the time of his death, notwithstanding that he 
may become entitled to the same subsequently to the execu- 
tion of his will. R.S.O. 1950, c. 426, s. 8. 



9. A widow may, in like manner, bequeath the crop of^ht°to S 
*r ground as well as of 1 
R.S.O. 1950, c. 426, s. 9. 



her ground as well as of her dower as of her other real estate. j!rop OSe ° f 



10. Save as provided by section 13, no will made by any^^^y 
person under the age of twenty-one years is valid. R.S.O. invalid 
1950, c. 426, s. 10. 

11. — (1) No will is valid unless it is in writing and exe- Executlon 
cuted in the manner hereinafter mentioned; that is to say, 
it shall be signed at the foot or end thereof by the testator, 
or by some other person in his presence and by his direction, 
and such signature shall be made or acknowledged by the 
testator in the presence of two or more witnesses present at 
the same time, and such witnesses shall attest and shall 
subscribe the will in the presence of the testator; but no form 
of attestation is necessary. 

(2) Every will, so far only as regards the position of the ^gnature° f 
signature of the testator, or of the person so signing for him, 
is valid within the meaning of this Act if the signature is so 
placed, at, or after, or following or under, or beside, or opposite 
to the end of the will, that it is apparent on the face of the 
will that the testator intended to give effect by such signature 
to the writing signed as his will, and no such will is affected 
by the circumstance that the signature does not follow or is 
not immediately after the foot or end of the will, or by the 
circumstance that a blank space intervenes between the con- 
cluding word of the will and the signature, or by the circum- 
stance that the signature is placed among the words of the 



54 



Exercise of 
appoint- 
ments bv 
will 



Will of 
member of 
the forces 



Age of 

testator 



Interpre- 
tation 



Publication 
unnecessary 



Effect of 

incom- 
petency of 
witness 



testimonium clause, or of the clause of attestation, or follows 
or is after or under the clause of attestation either with or 
without a blank space intervening, or follows, or is after, or 
under, or beside the names or one of the names of the sub- 
scribing witnesses, or by the circumstance that the signature 
is on a side, or page, or other portion of the paper or papers 
containing the will, whereon no clause or paragraph or dis- 
posing part of the will is written above the signature, or by 
the circumstance that there appears to be sufficient space on 
or at the bottom of the preceding side or page or other portion 
of the same paper on which the will is written to contain the 
signature, and the enumeration of the above circumstances 
does not restrict the generality of the above enactment; but 
no signature is operative to give effect to any disposition, or 
direction which is underneath, or which follows it, nor does 
it give effect to any disposition or direction inserted after the 
signature was made. R.S.O. 1950, c. 426, s. 11. 

12. No appointment made by will in exercise of any 
power is valid unless the appointment is executed in the 
manner hereinbefore required, and every will executed in the 
manner hereinbefore required is, so far as respects the execu- 
tion and attestation thereof, a valid execution of a power of 
appointment by will, notwithstanding it has been expressly 
required that a will made in exercise of such power shall be 
executed with some additional or other form of execution or 
solemnity. R.S.O. 1950, c. 426, s. 12. 

13. — (1) The will of any member of the forces, or of any 
manner or seaman when at sea or in course of a voyage, dis- 
posing of real or personal property, or both, may be made by 
a writing signed by him without any further formality or any 
requirement as to the presence of or attestation or signature 
by any witness. 

(2) The fact that the member of the forces or the mariner 
or seaman is under the age of twenty-one years at the time he 
makes his will does not invalidate it. 

(3) In this section, "member of the forces" means a mem- 
ber of the naval, military or air forces of Canada who, having 
been placed on active service or called out for training, service 
or duty, is serving in any of such forces. R.S.O. 1950, c. 426, 

s. 13. 

14. Every will executed in manner hereinbefore required 
is valid without any other publication thereof. R.S.O. 1950, 
c. 426, s. 14. 

15. If any person who attests the execution of a will is, 
at the time of the execution thereof, or becomes at any time 
afterwards, incompetent to be admitted as a witness to prove 
the execution thereof, such will is not on that account invalid. 
R.S.O. 1950, c. 426, s. 15. 



55 

16. If any person attests the execution of any will to to witness 
whom, or to whose wife or husband, any beneficial devise, invalid 
legacy, estate, interest, gift, or appointment of or affecting 

any real estate or personal estate, other than and except 
charges and directions for the payment of any debt, is thereby 
given or made, such devise, legacy, estate, interest, gift, or 
appointment is, so far only as concerns such person attesting 
the execution of such will, or the wife or husband of such 
person, or any' person claiming under such person or such 
wife or husband, utterly null and void, and the person so 
attesting shall be admitted as a witness to prove the execution 
of such will, or the validity or invalidity thereof, notwith- 
standing such devise, legacy, estate, interest, gift, or appoint- 
ment mentioned in such will. R.S.O. 1950, c. 426, s. 16. 

17. In case, by any will, any real estate or personal estate ^ff^ss 1 " as 
is charged with any debt, and any creditor, or the wife or 
husband of any creditor, whose debt is so charged attests the 
execution of such will, the creditor, notwithstanding such 
charge, shall be admitted as a witness to prove the execution 

of such will, or the validity or invalidity thereof. R.S.O. 1950, 
c. 426, s. 17. 

18. No person shall, on account of his being an executor E f.^ u t . or as 
of a will, be incompetent to be admitted as a witness to prove 

the execution of such will, or the validity or invalidity thereof. 
R.S.O. 1950, c. 426, s. 18. 

19.— (1) In this section, pftaSJ? 

interpre- 
tation 

(a) an interest in land includes a leasehold estate as 
well as a freehold estate in land, and any other 
estate or interest in land whether the estate or interest 
is real property or is personal property; 

(b) an interest in movables includes an interest in a 
tangible or intangible thing other than land, and 
includes personal property other than an estate or 
interest in land. 

(2) Subject to the other provisions of this section, the f£ \^^ ts 
manner and formalities of making, and the intrinsic validity 

and effect of a will, so far as the will relates to an interest in 
land, are governed by the law of the place where the land is 
situated. 

(3) Subject to the other provisions of this section, the mo^a^eV" 
manner and formalities of making, and the intrinsic validity 

and effect of a will, so far as the will relates to an interest in 
movables, are governed by the law of the place where the 
testator was domiciled at the time of his death. 



56 

(4) As regards the manner and formalities of making a 
will, so far as it relates to an interest in movables, a will made 
either in or out of Ontario is valid and admissible to probate 
if it is made in accordance with the law in force at the time 
of its making in the place where, 

(a) the will was made; or 

(b) the testator was domiciled when the will was made ; or 

(c) the testator had his domicile of origin. 

dom?<fi?e° f ^ ^ change of domicile of the testator occurring after a 

will is made does not render the will invalid as regards the 
manner and formalities of its making or alter its construction. 

S°wiii ructlon (6) Nothing in this section precludes resort to the law of 
the place where the testator was domiciled at the time of mak- 
ing a will in aid of its construction as regards an interest in 
land or an interest in movables. 

Movables (7) When the value of a thing that is movable consists 

11 S6Q in 

relation mainly or entirely in its use in connection with a particular 

parcel of land by the owner or occupier of the land, succession 
to an interest in the thing, either under a will or an intestacy, 
is governed by the law of the place where the land is situated. 

oVsection 011 (**) This section applies only to wills made on or after the 
1st day of July, 1954. 

Application (9) Section 19 of The Wills Act as it appears in the Revised 
1950, Statutes of Ontario, 1950 applies to wills made before the 1st 

c. 426, S. 19 , . _ , **- M 

day of July, 1954. 



Re-executed 
wills 



(10) For the purposes of this section, a will that is re- 
executed or that is revived by codicil shall be deemed to be 
made at the time at which it is so re-executed or revived. 
1954, c. 105, s. 1. 

by marriage 20. Every will made by any person dying on or after the 
13th day of April, 1897, is revoked by the marriage of the 
testator, except, 

(a) where it is declared in the will that the same is made 
in contemplation of such marriage; 

(b) where the wife or husband of the testator elects to 
take under the will, by an instrument in writing 
signed by the wife or husband and filed within one 
year after the testator's death in the office of the 
Registrar of the Supreme Court; 

(c) where the will is made in the exercise of a power of 
appointment and the real estate or personal estate 



57 

thereby appointed would not in default of such 
appointment pass to the testator's heirs, executor 
or administrator, or the person entitled as the 
testator's next of kin under The Devolution of Estates ^f^- 1960 > 
Act. R.S.O. 1950, c. 426, s. 20. 

21. No will is revoked by any presumption of an intention JJjJ 6 in 
on the ground of an alteration in circumstances. R.S.O. 1950, stances 

c. 426, s. 21. 

22. No will, or any part thereof, is revoked otherwise Revocation 
than as aforesaid provided by section 20, or by another will 
executed in the manner hereinbefore required, or by some 
writing declaring an intention to revoke the same, and exe- 
cuted in the manner in which a will is hereinbefore required 

to be executed, or by the burning, tearing, or otherwise 
destroying the same by the testator, or by some person in his 
presence and by his direction with the intention of revoking 
the same. R.S.O. 1950, c. 426, s. 22. 

23. No obliteration, interlineation or other alteration uonsfinter- 
made in any will after the execution thereof is valid or haSe t n ( ? atlons ' 
any effect, except so far as the words or effect of the will 

before such alteration are not apparent, unless such alteration 
is executed in like manner as hereinbefore is required for the 
execution of the will; but the will, with such alteration as 
part thereof, shall be deemed to be duly executed, if the 
signature of the testator and the subscription of the witnesses 
are made in the margin or in some other part of the will 
opposite or near to such alteration, or at the foot or end of, 
or opposite to, a memorandum referring to such alteration, 
and written at the end or in some other part of the will. 
R.S.O. 1950, c. 426, s. 23. 

24. No will, or any part thereof, that has been in any Revlval 
manner revoked, is revived otherwise than by the re-execution 
thereof, or by a codicil executed in the manner hereinbefore 
required, and showing an intention to revive the same, and 
where any will that has been partly revoked, and afterwards 
wholly revoked, is revived such revival does not extend to so 
much thereof as was revoked before the revocation of the 
whole thereof, unless an intention to the contrary is shown. 
R.S.O. 1950, c. 426, s. 24. 

25. No conveyance or other act made or done subse-J^^j ^^ 
quently to the execution of a will, of or relating to any real any interest 
estate or personal estate therein comprised, except an act testator 

by which such will is revoked as aforesaid, prevents the 
operation of the will with respect to such estate, or interest 
in such real estate or personal estate, as the testator had power 
to dispose of by will at the time of his death. R.S.O. 1950, 
c. 426. s. 25. 



58 



Will to speak 
from death 



Application 
of section 



26. — (1) Every will shall be construed, with reference to 
the real estate and personal estate comprised in it, to speak 
and take effect as if it had been executed immediately before 
the death of the testator, unless a contrary intention appears 
by the will. 

(2) This section applies to the will of a married woman 
made during coverture, whether she is or is not possessed of 
or entitled to any separate property at the time of making 
it, and any such will need not be re-executed or republished 
after the death of her husband. R.S.O. 1950, c. 426, s. 26. 



Elapsed 011 ^ • U n l ess a contrary intention appears by the will such 
devise rea J estate as is comprised or intended to be comprised in 

any devise in such will that fails or becomes void by reason 
of the death of the devisee in the lifetime of the testator, or 
by reason of such devise being contrary to law, or otherwise 
incapable of taking effect, shall be included in the residuary 
devise, if any, contained in such will. R.S.O. 1950, c. 426, s. 27. 



Disposition 
of property 
over which 
testator has 
a general 
power of 
appoint- 
ment under 
general 
devise or 
bequest 



o^/ieaShoids 28 » A devise of the real estate of the testator, or of the 
genera? rea ^ es t a te of the testator in any place or in the occupation 

devise of f anv person mentioned in his will, or otherwise described 
in a general manner, and any other general devise that would 
describe a leasehold estate, if the testator had no freehold 
estate that could be described by it, shall be construed to 
include his leasehold estates, or any of them, to which such 
description will extend as well as freehold estates, unless a con- 
trary intention appears by the will. R.S.O. 1950, c. 426, s. 28. 

29. A general devise of the real estate of the testator, 
or of the real estate of the testator in any place or in the 
occupation of any person mentioned in his will, or otherwise 
described in a general manner, shall be construed to include 
any real estate or any real estate to which such description 
will extend, which he may have power to appoint in any 
manner he may think proper, and shall operate as an execution 
of such power, unless a contrary intention appears by the will; 
and in like manner a bequest of the personal estate of the 
testator, or any bequest of personal estate described in a 
general manner, shall be construed to include any personal 
estate, or any personal estate to which such description will 
extend, which he may have power to appoint in any manner 
he may think proper, and shall operate as an execution of 
such power, unless a contrary intention appears bv the will. 
R.S.O. 1950, c. 426, s. 29. 

30. Where any real estate is devised to any person without 
out^vords^f an y wor( l s °f limitation, such devise shall, subject to The 
limitation Devolution of Estates Act, be construed to pass the fee simple 
c.'i66* ' ' or other the whole estate or interest that the testator had 

power to dispose of by will, unless a contrary intention appears 
by the will. R.S.O. 1950, c. 426, s. 30. 



Estate pass- 
ing under 



59 

31. Where any real estate is devised by any testator, ^©tr^m a f 
dying on or after the 5th day of March, 1880, to the heir '****» of ^ 
or heirs of such testator, or of any other person, and no con- 
trary or other intention is signified by the will, the words 

"heir" or "heirs" shall be construed to mean the person or 
persons to whom the real estate of the testator, or of such 
other person as the case may be, would descend under the law 
of Ontario in case of an intestacy. R.S.O. 1950, c. 426, s. 31. 

32. In any devise or bequest of real estate or personal w^rds "die 
estate, the words "die without issue", or "die without leaving iJsue° Ut or to 
issue", or "have no issue", or any other words that import that effe<t 
either a want or failure of issue of any person in his lifetime, 

or at the time of his death, or an indefinite failure of his 
issue, shall be construed to mean a want or failure of issue in 
the lifetime or at the time of the death of such person, and 
not an indefinite failure of his issue, unless a contrary intention 
appears by the will by reason of such person having a prior 
estate tail, or of a preceding gift, being, without any implica- 
tion arising from such words, a limitation of an estate tail to 
such person or issue, or otherwise; but this Act does not 
extend to cases where such words import if no issue described 
in a preceding gift be born, or if there be no issue who live to 
attain the age or otherwise answer the description required 
for obtaining a vested estate by a preceding gift to such issue. 
R.S.O. 1950, c. 426, s. 32. 

33. Where any real estate is devised to a trustee or ^ ^nder 88 " 
executor, such devise shall be construed to pass the fee simple £^^6*°!. 
or other the whole estate or interest that the testator had executor 
power to dispose of by will in such real estate, unless a definite 

term of years absolute or determinable, or an estate of free- 
hold is thereby given to him expressly or bv implication. 
R.S.O. 1950, c." 426, s. 33. 

34. Where any real estate is devised to a trustee without ^o a 6 trustee 6 
anv express limitation of the estate to be taken by such shall pass 

... - . - . . , , . the whole 

trustee, and the beneficial interest in such real estate, or in estate 
the surplus rents and profits thereof, is not given to any isTequisite' 
person for life, or such beneficial interest is given to any per- or t e 
son for life, but the purposes of the trust may continue 
beyond the life of such person, such devise shall, subject to 
The Devolution of Estates Act, be construed to vest in such ^^g- 1960 ' 
trustee the fee simple or other the whole legal estate that the 
testator had power to dispose of by will in such real estate, 
and not an estate determinable when the purposes of the 
trust are satisfied. R.S.O. 1950, c. 426, s. 34. 

35. Where any person to whom any real estate is devised devfses in 
for an estate tail, or an estate in quasi entail, dies in the life- to'isJpse 
time of the testator, leaving issue who would be inheritable 

under such entail, and any such issue are living at the time of 



60 



the death of the testator, such devise does not lapse but takes 
effect as if the death of such person had happened immediately 
after the death of the testator, unless a contrary intention 
appears by the will. R.S.O. 1950, c. 426, s. 35. 



Substitu- 
tional 
gifts 



36. Unless a contrary intention appears by the will, 
where a devise or bequest is made to a child, grandchild, 
brother or sister of the testator who dies before the testator 
and leaves issue surviving the testator, the devise or bequest 
does not lapse but takes effect as if it had been made directly 
to the persons among whom and in the shares in which the 
estate of that person would have been divisible, 



(a) if that person had died immediately after the death 
of the testator; 

(b) if that person had died intestate; 

(c) if that person had died without debts; and 



R.S.O. I960, 
C. 106 



(d) if sections 11 and 12 of The Devolution of Estates Act 
had not been passed. 1962-63, c. 144, s. 1. 



Primary 
liability of 
real estate 
to satisfy 
specific 
charge 



37. — (1) Where any person has died since the 31st day 
of December, 1865, or hereafter dies, seised of or entitled to 
any estate or interest in any real estate, which, at the time of 
his death, was or is charged with the payment of any sum of 
money by way of mortgage, and such person has not by his 
will or deed or other document, signified any contrary or other 
intention, the heir or devisee to whom such real estate des- 
cends or is devised is not entitled to have the mortgage debt 
discharged or satisfied out of the personal estate, or any other 
real estate of such person, but the real estate so charged is, 
as between the different persons claiming through or under 
the deceased person, primarily liable to the payment of all 
mortgage debts with which the same is charged, every part 
thereof according to its value bearing a proportionate part of 
the mortgage debts charged on the whole thereof. 



of'glneml 1106 (2) In the construction of a will to which this section 
payment o? relates, a general direction that the debts, or that all the 
debts out of debts, of the testator shall be paid out of his personal estate, 

personalty ' .- • r i r i i 

or residue or a charge or direction lor the payment ol debts upon or out 
of residuary real estate and personal estate or residuary real 
estate shall not be deemed to be a declaration of an intention 
contrary to or other than the rule in subsection 1, unless such 
contrary or other intention is further declared by words 
expressly or by necessary implication referring to all or some 
of the testator's debts charged by way of mortgage on any 
part of his real estate. 



61 

(3) Nothing herein affects or diminishes any right of the mortgagee's 
mortgagee to obtain full payment or satisfaction of his mort- ri s hts 
gage debt, either out of the personal estate of the person so 
dying or otherwise, and nothing herein affects the rights of 
any person claiming under any will, deed or document made 
before the 1st day of January, 1874. R.S.O. 1950, c. 426, s. 37. 



APPENDIX C 
THE UNIFORM WILLS ACT 

Recommended by the Conference of Commissioners 
on Uniformity of Legislation in Canada 

(Part I Revised 1957; Section 33 and Part II 
Revised 1966; Part III Recommended 1929) 

1. This Act .may be cited as the "Wills Act". Short title 

2. In this Act, "will" includes, taUoT"^ 

(a) a testament; 

(b) a codicil; 

(c) an appointment by will or by writing in the nature 
of a will in exercise of a power; and 

(d) any other testamentary disposition. 

PART I 

GENERAL 

3. A person may by will devise, bequeath or dispose of disposable 
all real and personal property, (whether acquired before or °y wil1 
after making his will), to which at the time of his death he 

is entitled either at law or in equity, including, 

(a) estates pur autre vie, whether there is or is not a. f *}??*{? "' 
special occupant and whether they are corporeal or 
incorporeal hereditaments; 

(b) contingent, executory or other future interests in interest? 11 
real or personal property, whether the testator is 

or is not ascertained as the person or one of the per- 
sons in whom those interests may respectively be- 
come vested, and whether he is entitled to them 
under the instrument by which they were respec- 
tively created or under a disposition of them by deed 
or will; and 

(c) rights of entry. ^f r h y ts ° f 

4. A will is valid only when it is in writing. required 

5. Subject to sections 6 and 7, a will is not valid unless, ieqSfred^n 

formal will 
execution 

(a) at its end it is signed by the testator or signed in 
his name by some other person in his presence and 
by his direction; 

[63] 



64 



Military 

forces and 
mariners 



Holograph 
will 



Place of 
signature: 
all wills 



{b) the testator makes or acknowledges the signature 
in the presence of two or more attesting witnesses 
present at the same time; and 

(c) two or more of the attesting witnesses subscribe the 
will in the presence of the testator. 

6. — (1) A member of the Canadian Forces while placed 
on active service pursuant to the National Defence Act, 
or a member of any other naval, land or air force while on 
active service, or a mariner or a seaman when at sea or in 
the course of a voyage, may make a will by a writing signed 
by him or by some other person in his presence and by his 
direction without any further formality or any requirement 
of the presence of or attestation or signature by a witness. 

(2) For the purpose of this section a certificate signed by 
or on behalf of an officer purporting to have custody of the 
records of the force in which a person was serving at the 
time the will was made setting out that the person was on 
active service at that time, is sufficient proof of that fact. 

(3) For the purposes of this section if a certificate under 
subsection (2) is not available, a member of a naval, land or 
air force is deemed to be on active service after he has taken 
steps under the orders of a superior officer preparatory to 
serving with or being attached to or seconded to a component 
of such a force that has been placed on active service. 

7. A testator may make a valid will wholly by his own 
handwriting and signature, without formality, and without 
the presence, attestation or signature of a witness. 

8. — (1) In so far as the position of the signature is con- 
cerned, a will is valid if the signature of the testator, made 
either by him or the person signing for him is placed at or 
after or following or under or beside or opposite to the end 
of the will so that it is apparent on the face of the will that 
the testator intended to give effect by the signature to the 
writing signed as his will. 

(2) A will is not rendered invalid by the circumstance that, 

(a) the signature does not follow or is not immediately 
after the foot or end of the will ; 

(b) a blank space intervenes between the concluding 
words of the will and the signature; 

(c) the signature 

(i) is placed among the words of a testimonium 
clause or of a clause of attestation, or 



65 

(ii) follows or is after or under a clause of attesta- 
tion either with or without a blank space in- 
tervening, or 

(iii) follows or is after or under or beside the name 
of a subscribing witness; 

(d) the signature is on a side or page or other portion 
of the paper or papers containing the will on which 
no clause or paragraph or disposing part of the will 
is written above the signature; or 

(e) there appears to be sufficient space on or at the 
bottom of the preceding side or page or other por- 
tion of the same paper on which the will is written 
to contain the signature. 

(3) The generality of subsection (1) is not restricted by 
the enumeration of circumstances set out in subsection (2), 
but a signature in conformity with section 5, 6 or 7 or this 
section does not give effect to 

(a) a disposition or direction that is underneath the 
signature or that follows the signature; or 

(b) a disposition or direction inserted after the signature 
was made. 

9.— (1) A will made by a person who is under the age Infants 
of twenty-one years is not valid unless at the time of making 
the will the person, 

(a) is or has been married; 

(b) is a member of a component of the Canadian Forces, 

(i) that is referred to in the National Defence Act 
as a regular force, or 

(ii) while placed on active service under the 
National Defence Act; or 

(c) is a mariner or seaman. 

(2) A certificate purporting to be signed by or on behalf 
of an officer having custody of the records of the force in which 
a person was serving at the time the will was made setting 
out that the person was at that time a member of a regular 
force or was on active service within clause (b) of subsec- 
tion (1), is sufficient proof of that fact. 

(3) A person who has made a will under subsection (1) may, 
while under the age of twenty-one years, revoke the will. 



66 



Will 
exercising 

power of 
appoint- 
ment 



10. A will made in accordance with this Act is as to form 
a valid execution of a power of appointment by will not- 
withstanding that it has been expressly required that a will 
in exercise of the power be made in some form other than 
that in which it is made. 



Publication 11. A will made in accordance with this Act is valid 
without other publication. 

petency of ^^' Where a person who attested a will was at the time 

witness f its execution or afterward has become incompetent as a 

witness to prove its execution, the will is not on that account 

invalid. 



Gift to 

attesting 
witness 



13, — (1) Where a will is attested by a person to whom or 
to whose then wife or husband a beneficial devise, bequest 
or other disposition or appointment of or affecting real or 
personal property, except charges and directions for payment 
of debt, is thereby given or made, the devise, bequest or 
other disposition or appointment is void so far only as it 
concerns 



(a) the person so attesting; or 

(6) the wife or the husband or a person claiming under 
any of them; 

but the person so attesting is a competent witness to prove 
the execution of the will or its validity or invalidity. 

(2) Where a will is attested by at least two persons who 
are not within subsection (1) or where no attestation is 
necessary, the devise, bequest or other disposition or appoint- 
ment is not void under that subsection. 



Creditor as 
witness 



14. Where real or personal property is charged by a will 
with a debt and a creditor or the wife or husband of a creditor 
whose debt is so charged attests a will, the person so attesting, 
notwithstanding such charge, is a competent witness to prove 
the execution of the will or its validity or invalidity. 



Executor as 
witness 



15. A person is not incompetent as a witness to prove 
the execution of a will, or its validity or invalidity solely be- 
cause he is an executor. 



Revocation 
in general 



16. A will or part of a will is revoked only by, 

(a) marriage, subject to section 17; 

(b) another will made in accordance with the provisions 
of this Act; 



67 

(c) a writing 

(i) declaring an intention to revoke, and 

(ii) made in accordance with the provisions of 
this Act governing making of a will; or 

(d) burning, tearing or otherwise destroying it by the 
testator or by some person in his presence and by 
his direction with the intention of revoking it. 

17. A will is revoked by the marriage of the testator ?y Carriage 
except where, 

(a) there is declaration in the will that it is made in 
contemplation of the marriage; or 

(b) the will is made in exercise of a power of appoint- 
ment of real or personal property which would not 
in default of the appointment pass to the heir, 
executor or administrator of the testator or to the 
persons entitled to the estate of the testator if he 
died intestate. 

18. A will is not revoked by presumption of an intention tion r by° ca " 
to revoke it on the ground of a change in circumstances. presumption 

19. — (1) Subject to subsection (2), unless an alteration ^teratfons 
that is made in a will after the will has been made is made in 
accordance with the provisions of this Act governing making 
of a will, the alteration has no effect except to invalidate 
words or meanings that it renders no longer apparent. 

(2) An alteration that is made in a will after the will has 
been made is validly made when the signature of the testator 
and subscription of witnesses to the signature of the testator 
to the alteration, or, in the case of a will that was made under 
section 6 or section 7, the signature of the testator, are or is 
made, 

(a) in the margin or in some other part of the will 
opposite or near to the alteration ; or 

(b) at the foot or end of or opposite to a memorandum 
referring to the alteration and written in some part 
of the will. 

20. — (1) A will or part of a will that has been in any man- Revival 
ner revoked is revived only, 

(a) by a will made in accordance with the provisions 
of this Act; or 



68 

(b) by a codicil that has been made in accordance with 
the provisions of this Act, 

that shows an intention to give effect to the will or part that 
was revoked. 

(2) Except when a contrary intention is shown, when a 
will which has been partly revoked and afterward wholly 
revoked, is revived, the revival does not extend to the part 
that was revoked before the revocation of the whole. 

subsequent 21. — (1) A conveyance of or other act relating to real 

conveyance, v ' J . & 

etc or personal property comprised in a devise or bequest or other 

disposition, made or done after the making of a will, does not 
prevent operation of the will with respect to any estate or 
interest in the property that the testator had power to dis- 
pose of by will at the time of his death. 

(2) Except when a contrary intention appears by the 
will, where a testator at the time of his death has a right or 
chose in action or equitable estate or interest that was cre- 
ated by a contract respecting, a conveyance of, or other act 
relating to, real or personal property that was comprised in 
a devise or bequest, made or done after the making of a will, 
the devisee or donee of that real or personal property takes 
the right or chose in action or equitable estate or interest of 
the testator. 

(3) Except when a contrary intention appears by the 
will, where the testator has bequeathed proceeds of the sale 
of property and the proceeds are received by him before his 
death, the bequest is not adeemed by commingling the pro- 
ceeds with the funds of the testator if the proceeds are traced 
into those funds. 

X i i 1 P 5 evived 22. — (1) When a will has been revived or re-executed by 



or re 



executed a codicil, the will is deemed to have been made at the time 

by codicil i • i • -i 

at which it was revived or re-executed. 

speaking (2) Except when a contrary intention appears by the will, 

from death a w jj| S p ea k s an( j takes effect as if it had been made im- 
mediately before the death of the testator with respect to, 

(a) the real and personal property; and 

(b) the right or chose in action or equitable estate of 
interest or the proceeds under subsections (2) and (3) 
of section 21. 

void 3 devises ^^' Except when a contrary intention appears by the 
and bequests yj\\\ t real or personal property or an interest therein that is 

comprised or intended to be comprised in a devise or bequest 

that fails or becomes void bv reason of 



69 

(a) the death of the devisee or donee in the life-time 
of the testator; or 

(b) the devise or bequest being contrary to law or other- 
wise incapable of taking effect, 

is included in the residuary devise or bequest, if any, contained 
in the will. 

24. Except when a contrary intention appears by the will, 1 I e n a c s 1 eho ( icis 0f 
where a testator devises, ii I i g ^ eral 

Q© V186 . 

(a) his land ; 

(b) his land in a place mentioned in the will, or in the 
occupation of a person mentioned in the will; 

(c) land described in a general manner; or 

(d) land described in a manner that would include a 
leasehold estate if the testator had no freehold 
estate which could be described in the manner used ; 

the devise includes the leasehold estates of the testator or 
any of them to which the description extends, as well as free- 
hold estates. 

25. — (1) Except when a contrary intention appears by g e x n e eraf e ° f 
the will, a general devise of, l™^?*" 

ment by 

(a) the real property of the testator; 

(b) the real property of the testator 

(i) in a place mentioned in the will, or 

(ii) in the occupation of a person mentioned in 
the will ; or 

(c) real property described in a general manner; 

includes any real property or any real property to which 
the description extends, that he has power to appoint in any 
manner he thinks proper and operates as an execution of 
the power. 

(2) Except when a contrary intention appears by the 
will, a bequest of, 

(a) the personal property of the testator; or 

(b) personal property described in a general manner; 
includes any personal property or any personal 
property to which the description extends, that he 



70 



Devise 
without 
words of 
limitation 



(lifts to 
heirs 



Meaning 
of "die 
without 
issue" 



has power to appoint in any manner he thinks proper 
and operates as an execution of the power. 

26. Except when a contrary intention appears by the 
will, where real property is devised to a person without words 
of limitation, the devise passes the fee simple or the whole 
of any other estate that the testator had power to dispose of 
by will in the real property. 

27. Except when a contrary intention appears by the 
will, where property is devised or bequeathed to the "heir" 
of the testator or of another person, 

(a) the word "heir" means the person to whom the bene- 
ficial interest in the property would go under the 
law of the Province if the testator or the other person 
died intestate; and 

(b) where used in that law the word "child" includes for 
the purpose of this section a person related by or 
through adoption to the testator or the other person. 

28. — (1) Subject to subsection (2), in a devise or bequest 
of real or personal property, 

(a) the words, 

(i) "die without issue", 
(ii) "die without leaving issue", or 
(iii) "have no issue"; or 

(b) other words importing either a want or failure of 
issue of a person in his lifetime or at the time of his 
death or an indefinite failure of his issue, 

means a want or failure of issue in the lifetime or at the time 
of death of that person, and do not mean an indefinite failure 
of his issue unless a contrary intention appears by the will. 

(2) This Act does not extend to cases where the words 
defined in subsection (1) import, 

(a) if no issue described in a preceding gift be born; or 

(b) if there be no issue who live to attain the age or 
otherwise answer the description required for ob- 
taining a vested estate by a preceding gift to that 
issue. 



trustees 10 29. Except when there is devised to a trustee expressly 

than r for e a or ^Y implication an estate for a definite term of years absolute 
term or determinable or an estate of freehold, a devise of real 



71 

property to a trustee or executor passes the fee simple or the 
whole of any other estate or interest that the testator had 
power to dispose of by will in the real property. 

30. Where real property is devised to a trustee without devised 
express limitation of the estate to be taken by him and the trustees 
beneficial interest in the real property or in the surplus rents 
and profits, 

(a) is not given to a person for life; or 

(b) is given to a person for life but the purpose of the 
trust may continue beyond his life, 

the devise vests in the trustee the fee simple or the whole 
of any other legal estate that the testator had power to dis- 
pose of by will in the real property and not an estate deter- 
minable when the purposes of the trust are satisfied. 

31. — (1) Where a testator leaves property in trust or by^uJ[g tabIe 
outright gift for a charitable purpose that is linked con- 
junctively or disjunctively in the will with a non-charitable 
purpose, and the non-charitable purpose is void for un- 
certainty or for any other cause, the charitable trust or gift 
is valid and operates solely for the benefit of the charitable 
purpose. 

(2) Where a testator leaves property in trust or by out- 
right gift for a charitable purpose that is linked conjunctively 
or disjunctively in the will with a non-charitable purpose, 
and the non-charitable purpose is not void, 

(a) the trust or gift is valid for both purposes; and 

(b) where the will has not divided the property among 
the charitable and non-charitable purposes, the 
trustee or executoi shall divide the property among 
the charitable and non-charitable purposes accord- 
ing to his discretion. 

32. Except when a contrary intention appears by the^®^^^ 
will, where a person to whom real property is devised for 
what would have been, under the law of England, an estate 
tail or in quasi entail, 

(a) dies 

(i) in the lifetime of the testator, 

(ii) at the same time as the testator, or 

(iii) in circumstances rendering it uncertain whe- 
ther that person or the testator survived the 
other; and 



12 



(b) leaves issue who would inherit under the entail if 
that estate existed, 

if any such issue are living at the time of the death of the 
testator, the devise does not lapse but takes effect as if the 
death of that person had happened immediately after the 
death of the testator. 



Gifts to 33. Except when a contrary intention appears by the 

predeceasing will, where a person dies in the life-time of a testator either 

before or after the testator makes the will and that person, 

(a) is a child or other issue or a brother or sister of the 
testator to whom, either as an individual or as a 
member of a class, is devised or bequeathed an 
estate or interest in real or personal property not 
determinable at or before his death; and 

(b) leaves (a spouse or) issue any of whom is living at 
the time of the death of the testator; 

the devise or bequest does not lapse, but takes effect as if it 
had been made directly to the persons among whom and in 
the shares in which the estate of that person would have been 
divisible if he had died intestate and without debts im- 
mediately after the death of the testator, (except that the 
surviving spouse of that person is not entitled to receive a 
preferential share of dollars as provided under sub- 

section ( ) of section of the Act). 

34. In the construction of testamentary dispositions, 
except when a contrary intention appears by the will, an 
illegitimate child shall be treated as if he were the legitimate 
child of his mother. 

35. — (1) Where a person dies possessed of, or entitled to, 
or under a general power of appointment by his will disposes 
of, an interest in freehold or leasehold property which, at the 
time of his death, is subject to a mortgage, and the deceased 
has not, by will, deed or other document, signified a contrary 
or other intention, 

(a) the interest is, as between the different persons 
claiming through the deceased, primarily liable for 
the payment or satisfaction of the mortgage debt; 
and 

(b) every part of the interest, according to its value, 
bears a proportionate part of the mortgage debt 
on the whole interest. 

(2) A testator does not signify a contrary or other intention 
within subsection (1) by, 



Illegitimate 
children 



Primary 
liability of 
mortgaged 
land 



73 

(a) a general direction for the payment of debts or of 
all the debts of the testator out of his personal 
estate or his residuary real or personal estate, or his 
residuary real estate; or 

(b) a charge of debts upon that estate, 

unless he further signifies that intention by words expressly 
or by necessary -implication referring to all or some part of 
the mortgage debt. 

(3) Nothing in this section affects a right of a person entitled 
to the mortgage debt to obtain payment or satisfaction either 
out of the other assets of the deceased or otherwise. 

(4) In this section, "mortgage" includes an equitable 
mortgage, and any charge whatsoever, whether equitable, 
statutory or of other nature, including a lien or claim upon 
freehold or leasehold property for unpaid purchase money 
and "mortgage debt" has a meaning similarly extended. 

36. — (1) Where a person dies after this Act takes effect, g^uto^ as 
having by will appointed a person executor, the executor is rescue 
a trustee of any residue not expressly disposed of, for the 
person or persons, if any, who would be entitled to that 
residue in the event of intestacy in respect to it, unless the 
person so appointed executor was intended by the will to take 
the residue beneficially. 

(2) Nothing in this section affects or prejudices a right 
to which the executor, if this Part had not been passed, would 
have been entitled, in cases where there is not a person who 
would be so entitled. 

37. This Part applies only to wills made on or after ^^Jg^j ^ 
the day of 



PART II 

CONFLICT OF LAWS 

38. In this Part, Conflict of 

' laws, inter- 

pretation 

(a) an interest in land includes a leasehold estate as well 
as a freehold estate in land, and any other estate or 
interest in land whether the estate or interest is real 
property or is personal property; 

(b) an interest in movables includes an interest in a 
tangible or intangible thing other than land, and 
includes personal property other than an estate or 
interest in land; 



74 

(c) "internal law" in relation to any place excludes the 
choice of law rules of that place. 

of P this a part *^* This Part applies to a will made either in or out of this 
Province. 



Interest in 
land 



4-0. — (1) The manner and formalities of making a will, and 
its intrinsic validity and effect, so far as it relates to an interest 
in land, are governed by the internal law of the place where the 
land is situated. 



Interest in 
movables 



(2) Subject to other provisions of this Part, the manner 
and formalities of making a will, and its intrinsic validity and 
effect, so far as it relates to an interest in movables, are 
governed by the internal law of the place where the testator 
was domiciled at the time of his death. 



movables- 1 ^' — (1) As re gards the manner and formalities of making 

formal a w ju f an interest in movables, a will is valid and admissible 

validity . . ... 

to probate if at the time of its making it complied with the 
internal law of the place where, 

(a) the will was made; or 

(b) the testator was then domiciled; or 

(c) the testator then had his habitual residence; or 

(d) the testator then was a national if there was in that 
place one body of law governing the wills of nationals. 

(2) Without prejudice to subsection (1), as regards the 
manner and formalities of making a will or an interest in 
movables, the following are properly made: 

(a) a will made on board a vessel or aircraft of any 
description, if the making of the will conformed to 
the internal law in force in the place with which, 
having regard to its registration (if any) and other 
relevant circumstances, the vessel or aircraft may 
be taken to have been most closely connected; 

(b) a will so far as it revokes a will which under this 
Part would be treated as properly made or revokes 
a provision which under this Part would be treated 
as comprised in a properly made will, if the making 
of the later will conformed to any law by reference 
to which the revoked will or provision would be 
treated as properly made; 

(c) a will so far as it exercises a power of appointment, 
if the making of the will conforms to the law govern- 
ing the essential validity of the power. 



75 

42. A change of domicile of the testator occurring after a domiane° f 
will is made does not render it invalid as regards the manner 
and formalities of its making or alter its construction. 

42a. Nothing in this Part precludes resort to the law of f°wni ru 
the place where the testator was domiciled at the time of 
making a will in aid of its construction as regards an interest 
in land or an interest in movables. 

426. Where the value of a thing that is movable consists related to 
mainly or entirely in its use in connection with a particular land 
parcel of land by the owner or occupier of the land, succession 
to an interest in the thing under a will is governed by the 
law that governs succession to the interest in the land. 

42c. — (1) Where, whether in pursuance of this Part or Formallties 
not, a law in force outside this Province is to be applied in 
relation to a will, any requirement of that law that 

(a) special formalities are to be observed by testators 
answering a particular description; or 

(b) witnesses to the making of a will are to possess certain 
qualifications, 

shall be treated, notwithstanding any rule of that law to the 
contrary, as a formal requirement only. 

(2) In determining for the purposes of this Part whether ^ e r ^ t tlve 
or not the making of a will conforms to a particular law, 
regard shall be had to the formal requirements of that law at 
the time the will was made but this shall not prevent account 
being taken of an alteration of law affecting wills made at that 
time if the alteration enables the will to be treated as properly 
made. 

PART III 

SUPPLEMENTARY 

43.— (1) Except as provided in subsection (2), this Act A f p £ct ation 
applies only to wills made after this Act comes into force ; and 
for the purposes of this Act a will which is re-executed or 
revived by any codicil shall be deemed to be made at the time 
at which it is so re-executed or revived. 

(2) In the case of any person dying after this Act comes 
into force, section 33 applies to his will whether it was made 
before or after this Act comes into force. 

44. — (lj Except as provided in subsection (2), the («7e Repeal 
here the existing Wills Act) is repealed. 

(2) The said Act continues in force, as if unrepealed, in 
respect of wills made before this Act comes into force. 



APPENDIX D 
WILLS ACT 1963 

Statutes of the United Kingdom, 1963 

CHAPTER 44 

An Act to repeal the Wills Act, 1861 and make new pro- 
vision in lieu thereof; and to provide that certain 
testamentary instruments shall be probative 
for the purpose of the conveyance of 
heritable property in Scotland 

[31st July, 1963] 

WHEREAS a Convention on the conflicts of laws relating 
to the form of testamentary dispositions was concluded 
on 5th October 1961 at the ninth session of the Hague Con- 
ference on Private International Law and was signed on behalf 
of the United Kingdom on 13th February 1962: 

And Whereas, with a view to the ratification by Her 
Majesty of that Convention and for other purposes, it is 
expedient to amend the law relating to wills: 

Be it therefore enacted by the Queen's Most Excellent 
Majesty, by and with the advice and consent of the Lords 
Spiritual and Temporal, and Commons, in this present Parlia- 
ment assembled, and by the authority of the same, as follows: 

1. A will shall be treated as properly executed if its execu- General 
tion conformed to the internal law in force in the territory to formal 
where it was executed, or in the territory where, at the time 
of its execution or of the testator's death, he was domiciled 
or had his habitual residence, or in a state of which, at either 
of those times, he was a national. 

2. — (1) Without prejudice to the preceding section, the £a© s ifcional 
following shall be treated as properly executed — 

(a) a will executed on board a vessel or aircraft of any 
description, if the execution of the will conformed to 
the internal law in force in the territory with which, 
having regard to its registration (if any) and other 
relevant circumstances, the vessel or aircraft may 
be taken to have been most closely connected; 

(b) a will so far as it disposes of immovable property, 
if its execution conformed to the internal law in 
force in the territory where the property was situated ; 

(c) a will so far as it revokes a will which under this Act 
would be treated as properly executed or revokes a 
provision which under this Act would be treated as 

[77] 



78 



comprised in a properly executed will, if the execution 
of the later will conformed to any law by reference to 
which the revoked will or provision would be so 
treated ; 

(d) a will so far as it exercises a power of appointment, 
if the execution of the will conformed to the law 
governing the essential validity of the power. 

(2) A will so far as it exercises a power of appointment 
shall not be treated as improperly executed by reason only 
that its execution was not in accordance with any formal 
requirements contained in the instrument creating the power. 

certain 3. Where (whether in pursuance of this Act or not) a law 

V Q Q li 1 r O Y11 G 11 1 s 

to be treated in force outside the United Kingdom falls to be applied in 
relation to a will, any requirement of that law whereby special 
formalities are to be observed by testators answering a 
particular description, or witnesses to the execution of a will 
are to possess certain qualifications, shall be treated, not- 
withstanding any rule of that law to the contrary, as a formal 
requirement only. 

of°wiiis Uctl ° n 4* The construction of a will shall not be altered by reason 
of any change in the testator's domicile after the execution 
of the will. 



Certain 
testa- 
mentary 
instruments 
to be 
probative 
for con- 
veyance of 
heritable 
property in 
Scotland 



5. — (1) Any testamentary instrument shall, notwithstand- 
ing anything in any Act passed before this Act, be treated as 
probative for the purpose of the conveyance of heritable 
property in Scotland if — 

(a) confirmation of executors to property disposed of in 
the instrument has been issued in Scotland, or 



21 & 22 Vict, 
c. 56 

55 & 56 Vict, 
c. 6 



(b) probate, letters of administration or other grant of 
representation issued outwith Scotland in respect of 
property disposed of in the instrument has been certi- 
fied in Scotland under section 14 of the Confirmation 
and Probate Act, 1858 or sealed in Scotland under 
section 2 of the Colonial Probates Act, 1892. 



(2) This section shall be without prejudice to the treating as 
probative for the said purpose of any instrument which would 
be so treated apart from this section. 



Interpre- 
tation 



6.— (1) In this Act 



'internal law" in relation to any territory or state means 
the law which would apply in a case where no 
question of the law in force in any other territory or 
state arose; 



79 

"state" means a territory or group of territories having its 
own law of nationality; 

"will" includes any testamentary instrument or act, and 
"testator" shall be construed accordingly. 

(2) Where under this Act the internal law in force in any 
territory or state is to be applied in the case of a will, but 
there are in force in that territory or state two or more systems 
of internal law relating to the formal validity of wills, the sys- 
tem to be applied shall be ascertained as follows — 

(a) if there is in force throughout the territory or state 
a rule indicating which of those systems can properly 
be applied in the case in question, that rule shall be 
followed; or 

(b) if there is no such rule, the system shall be that with 
which the testator was most closely connected at 
the relevant time, and for this purpose the relevant 
time is the time of the testator's death where the 
matter is to be determined by reference to circum- 
stances prevailing at his death, and the time of 
execution of the will in any other case. 

(3) In determining for the purposes of this Act whether or 
not the execution of a will conformed to a particular law, 
regard shall be had to the formal requirements of that law at 
the time of execution, but this shall not prevent account being 
taken of an alteration of law affecting wills executed at that 
time if the alteration enables the will to be treated as properly 
executed. 

7.— (1) This Act mav be cited as the Wills Act, 1963. Sh <> r t title, 

v ' • commence- 

ment, repeal 

(2) This Act shall come into operation on 1st January 1964. c 

(3) The Wills Act, 1861 is hereby repealed. 24 & 25 Vict. 

(4) This Act shall not apply to a will of a testator who died 
before the time of the commencement of this Act and shall 
apply to a will of a testator who dies after that time whether 
the will was executed before or after that time, but so that the 
repeal of the Wills Act, 1861 shall not invalidate a will executed 
before that time. 

(5) It is hereby declared that this Act extends to Northern l () & ,}J Geo - 
Ireland, and for the purposes of section 6 of the Government 

of Ireland Act, 1920 this Act shall be deemed to be an Act 
passed before the appointed day within the meaning of that 
section. 





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CAT. NO. 23 233 



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