Written by: Dina Nikseresht
In the recent Ontario Superior Court of Justice decision Bayliss v Burnham, 2025 ONSC 5376, the Court invalidated the purported will of Kenneth Ryan Hill, a wealthy Six Nations businessman with an estate valued at over $83 million.
After the death of Hill, an unwitnessed, single-page, typewritten document was discovered. The document named one of his sons, Ryan Edward Dalton Burnham as the executor of the estate and left Hill’s interest in Grand River Enterprises to him. The document also set out monetary gifts to several of Hill’s other children ranging from $3 million to $5 million. The validity of the document was challenged by Hill’s children and their mothers, who argued that Hill had not signed the document, was not aware of its content, and that there were suspicious circumstances surrounding its creation and execution.
Justice Faieta examined whether the document met the requirements for a valid will under the Indian act, Succession Law Reform Act (SLRA) and under common-law principles. As Hill was a status Indian, the court considered section 45(2) of the Indian Act, which allows the Minister to accept as a will any written instrument signed by the testator that demonstrated testamentary intention. The Court also noted that section 4 of the SLRA requires a wet-ink signature and witnessing formalities. Forensic evidence could not confirm that the signature on the document was Hill’s wet-ink signature, nor was there any evidence of proper execution. As a result, the document failed to meet the statutory requirements under both the Indian Act and SLRA.
Further, the Respondent did not successfully establish that Hill knew and approved of the contents of the document. There was no evidence presented to demonstrate how they document was created, or the circumstances surrounding its alleged execution. The Court determined that suspicious circumstances did exist, preventing the application of common-law doctrine that can support validating a defective will. As a result, Justice Faieta concluded that the document was not a valid will and ordered that Hill’s estate be distributed on an intestacy basis.
This case underscores the importance of proper execution and clear evidence of testamentary intention. While common law principles can be applied to support the validity of the will, evidence of the circumstances surrounding the creation and execution of the will are critical. As technology evolves and digital documents become increasingly common, it remains to be seen whether digital signatures will begin to make their way into the execution of wills.
