A will is a legal document that outlines a testator’s wishes for the distribution of their property after they die. Section 4(2) of the Succession Law Reform Act (“SLRA”) sets out the execution requirements for a valid formal will in Ontario. These include:
- At its ends the will is signed by the testator or by some other person in his or her presence and by his or her direction;
- The testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
- Two or more of the attesting witnesses subscribe the will in the presence of the testator.
Until recently, these requirements were strict, meaning that any failure to adhere to them would result in the will being invalid, without exception. While the strict requirements are intended to ensure that probated wills represent the testator’s true final wishes, they can result in unfortunate situations where generally compliant wills are defeated by often minor human errors or omissions.
Take, for example, a situation where a testator signs her will in the presence of two witnesses, but one witness forgets to actually sign the will. Thinking her affairs are in order, the testator then stores her will away for years and only after she dies is the missing witness signature discovered. In this situation, without the second witness’ signature, the testator has failed to execute a valid will and her wishes expressed in the will cannot be carried out.
However, a substantial compliance clause was recently added in section 21.1 of the SLRA, which allows the court to order that a non-compliant will, such as the one described above, is valid and fully effective notwithstanding its non-compliance with the requirements if the court is satisfied that the document sets out the testamentary intentions of the deceased.
Section 21.1 of the SLRA applies only to the wills of testators who have died after January 1, 2022. Below is a brief overview of some recent cases where the court has validated non-compliant wills pursuant to section 21.1 of the SLRA. As demonstrated in these cases, the key consideration of the court in determining whether to validate a non-compliant will is whether the document reflects the testator’s fixed and final intentions.
Grattan v. Grattan – February 1, 2023
In this unreported case, the deceased met with her lawyer to provide instructions for her will. The lawyer drafted the will in accordance with the deceased’s instructions and sent a draft of the will to the deceased. The deceased made some minor changes to the draft, and the terms of the will were finalized by the lawyer. The deceased died fifteen days following this exchange, having never attended the lawyer’s office to execute the will.
On an application, the court applied section 21.1(1) of the SLRA in declaring that the will was valid and fully effective despite the deceased having failed to execute the will. Based on the record, the court was satisfied that the will was authentic and had been prepared by a lawyer with the direct instructions of the deceased, which were clear, settled, and unambiguous.
It should be noted that this case was unopposed and the application of section 21.1 was highly dependant on the specific factual circumstances before the court. It is unclear to what extent the court will continue to apply section 21.1 to validate wills where no attempts at execution have been made. Afterall, as noted by Justice Myers in the recent case of White v. White, 2023 ONSC 3740, when considering the potential application of section 21.1 in such circumstances, “a draft is just a draft”.
Cruz v Public Guardian and Trustee, 2023 ONSC 3629
In this case, the deceased prepared his own will, which he gave to his chosen executor in a sealed envelope. Unbeknownst to the executor, the sealed envelope contained a note from the deceased instructing the executor to have the will witnessed, which never occurred.
While the deceased “blew the formalities” of executing his will, the document was found to record his “deliberate or fixed and final expression” regarding the disposal of his property on death. As such, the will was declared to be valid and fully effective, with Justice Myers noting that “fixing this type of mistake is precisely what section 21.1 seems to be for”.
Vojska v. Ostrowski, 2023 ONSC 3894
In Vojska, the deceased executed a will, which was witnessed by her lawyer. However, like the example above, the lawyer failed to sign the will. There was no disagreement that everyone present at the will signing, including the deceased, intended and thought the will had been properly signed and witnessed, and the court found that the lawyer’s failure to sign the will was the result of human error.
In declaring that the will was valid and fully effective notwithstanding the missing witness signature, Justice Myers found that, as far as the deceased knew, the will was signed with all its required formalities. There was no doubt regarding the authenticity of the will or that it set out the testamentary intentions of the deceased.
As noted by Justice Myers at paragraph 12 of the decision, “it is hard to imagine a more textbook example of a case for which the new power [s. 21.1 of the SLRA] was intended”.
While it is still early days for the caselaw regarding section 21.1 of the SLRA, the above cases demonstrate the willingness of the court to apply the substantial compliance clause to validate otherwise invalid wills when it is satisfied that the non-compliant will represents the fixed and final intentions of the testator.
While recourse may be had to section 21.1 of the SLRA when mistakes occur, the best practice is still to avoid the delay and expense of a court application by engaging in careful estate planning to ensure your will complies with the requirements of the SLRA.