In Boyle v. Boyle, 2026 ONSC 4919, the court considered the validity of handwritten alterations to a will.
William Robert Boyle (the “Deceased”) died on March 7, 2025. The Deceased left a typed last will and testament dated March 15, 2020. The Deceased was predeceased by his parents, had no spouse or children, and was one of 16 siblings, 9 of whom survived him. The Will left the residue to 11 beneficiaries in varying percentages. On three separate occasions, the Deceased made handwritten notations to the residue clause of the Will, some dated, some undated, which alterations the Deceased later struck out.
The estate trustee of the deceased’s estate applied to the court for directions as to whether the handwritten notations were valid amendments to the Will, which would result in an intestacy of the residue, or whether the Will should be read as if the alterations has not been made.
The court first considered whether the Deceased’s alterations complied with s.18 of the Succession Law Reform Act (“SLRA”). Sections 18(2) requires that any alternations to a non-holographic will be signed by the testator, and witnessed by two witnesses. In this case, the Deceased initialed, but did not sign, the alternations, and there were no witnesses to any of the changes. The changes were therefore not valid or effective alterations to the will.
The court went on to consider whether the invalid alterations could be saved or given effect using the court’s curative powers under s.21.1 of the SLRA. In order to validate the deceased’s changes to the will, s.21.1 requires the changes to be authentic, and show a deliberate, fixed and final testamentary intention.
The court accepted that the Deceased made the alterations such that they were authentic. However, the court did not accept that the Deceased’s final markings striking out all operative residue terms showed a fixed and final testamentary intention, as this would result in an intestacy, which could not have been what the Deceased intended. There was no evidence that the Deceased was aware of the law of intestacy or intended that his estate be distributed on intestacy, which would be a marked departure from the original residuary beneficiaries. The alternations therefore could not be given effect under s.21.1 of the SLRA.
Finally, the court considered whether the alterations invalided the residue clause under s.18(1) of the SLRA to the extent they made the underlying words no longer apparent. In this case, the typed residue clause remained legible notwithstanding the alterations, such there was no basis to invalidate the residue clause.
Take Away
This case demonstrates the importance of maintaining an unaltered, clean, original will. A testator considering changes to their will should make any notations on a copy or a separate note clearly labelled as “draft” or some other such markings to indicate the changes are not intended to be fixed and final. If changes are contemplated, it is best to consult a lawyer to determine how alterations can be made in compliance with the SLRA, or whether a codicil or new will should be executed. The extra cost of a new will prepared by a lawyer is far less than the expense an estate will face when dealing with an improperly altered will.
