On June 15, 2024, Robert Chang (“Robert”) received an unexpected text from his brother, Luen-Wen Chang (the “Luen-Wen”). Luen-Wen advised Robert that he was ill and asked Robert to visit him as soon as possible. Luen-Wen also said he wanted to “give [his] will” to Robert.
On June 19, 2024, Robert (who lived in Dallas, Texas) visited an Etobicoke Hospital and learned that Luen-Wen was terminally ill. During this visit, Luen-Wen asked Robert for something to write on. Robert handed Luen-Wen a print-out he received with his rental car and a pen. Luen-Wen wrote the following on the back of the print-out (the “Handwritten Document”):
Will by Luen-Wen Chang (of 68 N Heights Rd, Toronto) to Robert Taiwen Chang of Dallas, Texas ------------------ all my belongings go to Robert Chang including: 1 house, at North Heights Rd, for 1.2m to 1.5m 1 car, for 4K bank acct: I. Simplii Financial, about 6K 2. EQ Bank acct $550 (580K) 3. ["R" or "P"] Financial about $330K 4. [illegible] Financial, about $230K 200K
Robert was the only person who witnessed Leun-Wen write the unsigned Handwritten Document. Robert left around 5:00pm to find a hotel and returned to the hospital later that evening with a notebook bearing the hotel’s monogram. Luen-Wen handed Robert the Handwritten Document with instructions to keep it. When Robert asked for directions on how to handle Luen-Wen’s property, Luen-Wen simply told him to “be fair”. Luen-Wen then wrote the following on the hotel stationary (the “Final Note”):
Tomorrow (Thursday) 11 AM Dr. Halliday. You. me. Three people talk. 1. power of attorney 2. long term care 3. palliative care I have lung cancer (cure or therapy) So painful, hurting, hard to live I'm very tired, very exhausted, Very easy to get tired. Appetite no good
The next day, on June 20, 2024, Luen-Wen passed away. Robert intended to follow Luen-Wen’s instruction to fairly distribute his property amongst family members. Robert believed that Luen-Wen may have had a child with a former partner. He remembered meeting an infant girl in the 1990s, who was described as a “family member” by Luen-Wen’s former partner. However, Luen-Wen had not contacted the child for some time. Robert hired a security consulting firm, who confirmed that Luen-Wen had a daughter in 1989 named Sherrie Chang (“Sherrie”).
The Application
Robert commenced an application to determine the validity of the Handwritten Document, amongst other relief. He sought an order validating the Handwritten Document as Luen-Wen’s valid and fully effective will, pursuant to s. 21.1 of the Succession Law Reform Act (“SLRA”). Such relief was unopposed by the respondents of the application, including Sherrie.
The Court first had to determine whether the Handwritten Document was a valid holographic will. s. 6 of the SLRA requires a valid holographic will to be wholly in the testator’s handwriting with their signature, without formality and without a witness.
While the Handwritten Document was wholly in Luen-Wen’s handwriting, it did not contain a signature. It therefore did not meet the requirements of a valid holographic will. 21.1 of the SLRA allows the Court to validate an improperly executed testamentary document if the Court is satisfied that the document “sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will” and the deceased died after January 1, 2022. As Luen-Wen died in 2024, s. 21.1 applied.
To validate the Handwritten Document under s. 21.1, Robert had the burden of establishing that, on a balance of probabilities, the Handwritten Document was authentic and expressed Luen-Wen’s fixed and final testamentary intentions.
Authenticity
Justice Sanfilippo found that the surrounding circumstances supported the authenticity of the Handwritten Document. The text messages demonstrated the steps taken by Luen-Wen to urge Robert to travel a great distance (Dallas to Toronto) to retain his will. While the Handwritten Document itself was undated, it was written on the back of a rental car print-out dated June 18, 2024. As the Handwritten Document could only be executed between June 18 and June 20 (Luen-Wen’s date of death), this supported Robert’s claim that Luen-Wen wrote the document on June 19.
The Handwritten Document was an original paper document (not electronic) and contained information regarding Luen-Wen’s assets that only he could have known. The value of the assets in the Handwritten Document closely matched their actual value.
Finally, Justice Sanfilippo found Robert to be a credible and reliable witness due to the supporting documents provided in his affidavit and his conduct. Particularly, by taking the initiative to locate Sherrie, the Court found his conduct aligned with a commitment to fairly administer Luen-Wen’s estate rather than financial self-interest.
The fact Robert (who was a beneficiary of the Handwritten Document) witnessed Luen-Wen write the Handwritten Document did not render it invalid. The Court used Robert’s testimony of witnessing Luen-Wen write the document to support a finding of authenticity, not as an attestation as to Luen-Wen’s execution of the Handwritten Document or to discharge any attestation of witness requirement. Furthermore, there was no evidence that Robert exercised any improper or undue influence upon Luen-Wen. As such, Robert’s evidence did not affect his entitlements as a beneficiary of the Handwritten Document.
Fixed and Final Intention
A finding of fixed and final testamentary intention is a fact-intensive inquiry that often turns on extrinsic evidence. In this case, Justice Sanfilippo found the that the surrounding circumstances of the Handwritten Document favoured a finding of fixed and final intention.
While Luen-Wen did not sign the Handwritten Document, it was written at a time where Luen-Wen was in hospital and nearing death. He therefore understood the Handwritten Document to be his will, as there was limited opportunity to execute a subsequent will.
The Final Note also listed items that Luen-Wen wanted to address the next day, such as a power of attorney and long-term care. The Final Note did not list preparing a will, which implied that Luen-Wen believed that he already wrote a new will via the Handwritten Document. Luen-Wen also titled the Handwritten Document as a “will” and identified himself as the testator, such as stating his address. Luen-Wen gave the Handwritten Document to Robert on the eve of his death with the knowledge that he had limited time to modify his testamentary wishes.
There were no issues of certainty with respect to the distribution of the estate, as the Handwritten Document included a specific bequest to Robert of all Luen-Wen’s “belongings”. Luen-Wen’s instruction to “be fair” did not invalidate the specific bequest, but rather it was a precatory expression to guide Robert’s distribution of the estate. In any event, the statement was unreliable hearsay evidence and could not be used to advance a claim regarding the distribution of the estate.
Conclusion
On finding the Handwritten Document was authentic and reflected Luen-Wen’s fixed and final intentions, the Court ordered that the document was a valid will.
As evidenced by Chang v. Chang, 2026 ONSC 4842, s. 21.1 can be a powerful tool in providing relief against the harsh consequences of failing to meet the strict formalities of wills required by the SLRA. However, such relief is not granted easily, and the Court must be satisfied that a purported document truly expresses a testator’s final wishes. In making such decisions, extrinsic evidence plays an important role in explaining the circumstances of an improperly executed will and why the document reflects a testator’s last wishes.
