succession law reform act Archives

WHEN A DRAFT WILL IS NOT ENOUGH: SMITH V. BECHTEL

Mar 11, 2026

In Smith v. Bechtel, 2026 ONSC 975, the Ontario Superior Court of Justice considered whether an unsigned draft will prepared by a lawyer could be treated as a valid will under s. 21.1 of the Succession Law Reform Act.

The case highlights an issue that sometimes arises when someone begins the process of making a will but dies before it is formally signed. The court was asked to decide whether the draft document should be treated as the deceased’s will, or whether the estate should instead be distributed according to Ontario’s intestacy rules.

Background

Timothy Bechtel died suddenly on September 30, 2024. He had never married, had no common law spouse, and had no children. He was survived by several siblings and the children of a predeceased brother. Importantly, Mr. Bechtel did not have an ongoing relationship with his siblings.

About two weeks before his death, Mr. Bechtel met with a lawyer to prepare a will and powers of attorney. The lawyer took handwritten notes during the meeting and later prepared draft documents reflecting those instructions. A letter enclosing the drafts was left for Mr. Bechtel to pick up, along with a request that he review the documents and advise the lawyer of any changes before a scheduled appointment to sign them.

Mr. Bechtel died twelve days later, before the documents could be reviewed or executed.

What Did Mr. Bechtel’s Draft Will Say?

The draft will set out a specific plan for how Mr. Bechtel’s estate should be distributed. It appointed the applicant, Tammy Lyn Smith, as estate trustee. Ms. Smith had previously worked as Mr. Bechtel’s office manager and remained a close friend after her employment ended.

The draft will also included several gifts to individuals and a charity, including:

$75,000 to each of Mr. Bechtel’s three nephews
$100,000 to a friend
$50,000 to another friend
$75,000 to the Arnprior Humane Society
A riding lawn mower to a neighbour

After those gifts were paid, the remaining estate was to go to Ms. Smith. Notably, Mr. Bechtel’s siblings were not included as beneficiaries under the draft will.

What Would Happen to Mr. Bechtel’s Estate Without a Valid Will?

If a person dies without a valid will, their estate is distributed according to Ontario’s intestacy rules, which are set out in the Succession Law Reform Act. These rules determine who inherits based on a fixed order of family relationships.

Because Mr. Bechtel had no spouse and no children, his estate would be distributed to his next closest relatives, which in this case meant his surviving siblings and the children of his predeceased brother. In other words, if the draft will was not validated, the estate would pass to family members who were not beneficiaries under the draft will, rather than to the friends and charity named in that document.

This created the central legal question in the case: Should the court treat the draft will as Mr. Bechtel’s valid will, or should the estate be distributed according to the intestacy rules?

The Legal Context

Under the Succession Law Reform Act, a will is normally only valid if it meets certain formal requirements. Among other things, it must be signed by the testator in the presence of two witnesses, who must also sign the will.

The draft will in this case had not been signed or witnessed, so it did not meet those requirements.

However, s. 21.1 of the SLRA, which came into force in 2022, allows the court to validate a document that does not meet the formal requirements if the court is satisfied that the document sets out the testamentary intentions of the deceased. In other words, the court can treat a document as a valid will if it is satisfied that it reflects the deceased person’s final intentions for how their estate should be distributed.

Ms. Smith’s Evidence

The applicant, Ms. Smith, relied on several pieces of evidence to support the application.

The lawyer who prepared the draft will testified that Mr. Bechtel attended their meeting alone, appeared to have capacity, and seemed clear about how he wanted to distribute his estate.
The applicant also found a handwritten document in Mr. Bechtel’s home listing his assets and setting out general instructions about certain gifts, with the remainder of the estate going to the applicant.
In addition, the applicant and a charity had been named as beneficiaries of certain insurance and investment assets.

While this evidence suggested that Mr. Bechtel intended certain people to benefit from his estate rather than his siblings, the court noted that expressions of intention alone are not enough to establish a valid will.

The Court’s Decision

The court ultimately concluded that the draft will could not be validated.

One of the key issues was that there was no evidence that Mr. Bechtel had reviewed the draft will prepared by his lawyer. The lawyer’s letter specifically asked Mr. Bechtel to review the document and advise of any changes or corrections, indicating that the document was still part of an ongoing drafting process.

The court also noted that the deadline for providing feedback on the draft had not yet passed when Mr. Bechtel died.

In addition, the handwritten list found in Mr. Bechtel’s home contained differences from the draft will, including different amounts and beneficiaries.

The court noted that people often reconsider their decisions while a will is being drafted. Because there was no evidence that Mr. Bechtel had reviewed or approved the draft, it was not possible to conclude that the document represented his final testamentary intentions.

For that reason, the court declined to validate the draft will under s. 21.1 of the SLRA. As a result, Mr. Bechtel’s estate would be distributed according to the intestacy rules.

Takeaways

Smith v. Bechtel illustrates the limits of the court’s power to validate documents that do not meet the formal requirements for a will.

Even though the evidence suggested that Mr. Bechtel had begun the process of creating a will and had discussed his wishes with a lawyer, the court was not satisfied that the draft document represented his final decision about how his estate should be distributed.

The case serves as a reminder that the process of preparing a will is not complete until the document is reviewed, finalized, and properly executed.

Diana Begaliyeva

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

BLOGS BEGETTING BLOGS: AN UPDATE ON MARRIAGE REVOKING A WILL

Oct 8, 2025

I love hearing from readers of our blogs. It’s exciting to know people are reading and thinking about them, but beyond that, it’s such a pleasure to connect with other lawyers and discuss the law, outside of any specific dispute.

In my blog of January 9, 2024, When Does Marriage Revoke a Will, I puzzled about the Bill 245 amendments to sections 15 and 16 of the Succession Law Reform Act, which repealed the sections on marriage revoking a Will, and when those amendments could be said to take effect. Did they apply only to marriages after December 31, 2021 (the date the amendments took effect), only to Wills made after that date, or only for Deceased people who died after that date? Without a transition provision, it was not entirely clear.

Since writing that blog, I have heard from counsel who argued the case that the court has decided this issue. In Bolotenko v Wright Estate, 2025 ONSC 1154, the estate trustee, Aleksandr Bolotenko, sought direction from the court on whether Bill 245 applied retroactively. In that case, the Deceased died in April 2022 (after the SLRA amendments), his Will was dated March 8, 1999, and he married in February 2003. The estate trustee sought direction on whether the Bill 245 applied retroactively such that the Will was not revoked. The court held that there was no retroactive application: any marriage before January 1, 2022 had the effect of revoking any existing Will.

Now comes an interesting twist, flagged for me by another lawyer/blog reader. If the repeal of SLRA section 15(a) (which previously stated that a Will is revoked by marriage) only applies to marriages after December 31, 2021, does the repeal of the saving provisions in section 16 have a similarly delayed application?

Section 16 was repealed in its entirety by Bill 245. Previously, it set out specific situations where a Will could remain in effect despite a subsequent marriage:

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 contemplation of the marriage;

(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or

(c) the will is made in exercise of a power of appointment of 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 or she died intestate. R.S.O. 1990, c. S.26, s. 16.

Logically, it seems that the timing of the section 16 revocation must follow that of section 15(a). If marriages before January 1, 2022 revoked existing Wills, then the section 16 provisions remain in place to save such Wills that would otherwise be revoked. The court in Bolotenko v Wright Estate applied as much. The court at paragraphs 1-2 considers whether the Will had any saving provision as described in the old section 16 (a). This seems to suggest that section applies in its entirety to pre-January 1, 2022 marriages. For example, a spouse could continue to elect under the old section 16(b) to take under the Will, regardless of its revocation.

I look forward to reading and hearing more about the court’s consideration of these provisions!

Laura Cardiff

CARA ZACKS PRESENTS AT ONTARIO LEGAL CONFERENCE

Feb 20, 2025

On February 6, 2025, Cara Zacks was a panelist at the Ontario Legal Conference hosted by the Ontario Bar Association. Cara Spoke on a panel with family law lawyer Kelly Jordan on the subject of Marital Contracts After Death. The Panel was moderated by family law lawyer Ibtisam Jemal.

Cara presented on issues related to the enforceability of a marriage contract after death. In particular, she discussed setting aside provisions in a marriage contract through which a spouse releases the right to claim dependent support under the Succession Law Reform Act or to elect equalization after the death of a spouse.

WHEN LAWS COLLIDE

Jan 6, 2025

One of my favourite parts of working as an estate litigator is that our files intersect with so many areas of law. Our clients come to us for our expertise and advice on estate and capacity law, but their complex legal problems often require answers outside our expertise.We work with our clients to find experts in areas of law like tax, employment, family, business, and real estate law, to provide a comprehensive answer to our clients’ legal problems.

Not surprisingly, family law regularly interacts with estate litigation. For example, a surviving spouse may elect to make an equalization payment claim under the Family Law Act rather than take what they are entitled to under their spouse’s will. A surviving spouse may choose to make an equalization claim and, at the same time, a dependant support claim under the Succession Law Reform Act.

Tax law often comes into play in estate litigation. When you die, your assets are deemed to have been disposed of, potentially triggering capital gains tax. When working on a piece of estate litigation, we often work with expert tax lawyers to help us assess the estate’s tax liabilities. When we help our clients negotiate a settlement, we consult with tax experts to help beneficiaries and estate trustees minimize tax liabilities.

Corporate law issues often arise in estate litigation, as well. Often, we act as or represent an estate trustee for estates that own businesses. When this is the case, we may consult a business lawyer to help us find the most practical way to transfer or sell the business or to determine its assets and liabilities.

Employment law is another area that regularly comes up in estate litigation if the deceased owned a business. In such cases, the estate trustee may have to worry about employment contracts as well as ongoing wrongful dismissal claims.

Finally, real estate law frequently intersects with estate litigation. Whether it’s a family home, cottage, or investment property, disputes often arise over ownership of the property, the property value, or whether an estate property should be sold (and for how much) or kept in the family.

Estate litigation does not happen in a vacuum. Although our clients may retain us to assist with a will challenge or a dependant support claim, for example, other areas of law are sure to pop up over the course of the litigation. It’s our job to find lawyers with the right expertise to work with so we can, together, provide helpful and tailored advice to reach a resolution as quickly and efficiently as possible.

Cara Zacks

TO BE OR NOT TO BE (A WILL). THAT IS THE QUESTION.

Jul 7, 2023

Before January 1, 2022, Ontario courts would only consider a Will valid if the Will complied with the strict, technical formalities set out in the Succession Law Reform Act. For example, under the SLRA, a Will was only considered valid if the Will was in writing, if it was signed by the testator at the end of the document, and if it was witnessed by two or more people.

However, with the recent addition of section 21.1(1) to the SLRA, even Wills that don’t meet those formal requirements may be considered valid, as long as the court is satisfied that the document “sets out the testamentary intentions of a deceased”. This means the court now has the power to order that a document is as valid and as effective as a Will, even if it does not meet the requirements of a Will. This new section of the SLRA applies to Wills of people who died after January 1, 2022.

For a while, we didn’t have many examples of people relying on section 21.1(1). Now, however, we are starting to see the court interpreting section 21.1(1) in some recent decisions.

As expected, the court has relied on cases from other provinces that already introduced provisions similar to section 21.1(1) of the SRLA. In a series of recent decisions from the Ontario Superior Court from June 2023, the court found that even when a Will wasn’t witnessed at all or signed by the testator, the Will was valid because it recorded a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.” If it is clear from the facts and evidence that the deceased intended the document to be a proper Will, it seems like the Ontario court will have little difficulty finding the document to be a valid Will.

In these first few cases interpreting section 21.1(1) of the SLRA, all the documents validated as Wills looked very much like a proper Will, but for a few key issues, like missing signatures. Only time will tell how far the court will go to validate documents that may set out someone’s testamentary intentions, but that stray even farther from the technical requirements of a Will.