Word from the Court on Substantial Compliance

The COVID-19 pandemic was the catalyst for a swath of amendments to estates and trusts practices in Ontario.  One such update was the introduction of section 21.1 of Ontario’s Succession Law Reform Act, which came into effect on January 1, 2022, and broadly amended the criteria governing the validity of wills in the province.

Prior to the implementation of section 21.1, Ontario was what was known as a strict-compliance jurisdiction with respect to the validity of wills prepared here.  Strict compliance regimes leave no flexibility or discretion as to whether or not a will is valid.  Prior to section 21.1 coming into effect, as a general proposition a will executed in Ontario was only valid if,

1. It was signed by the testator or by some other person in the testator’s presence at their direction;
2. The testator’s signature was made in the presence of at least two attesting witnesses; and
3. The attesting witnesses also signed the will in the presence of the testator.

If a particular instrument did not satisfy all of these criteria, it was invalid, and no discretion was available to allow any defects in validity to be cured.

Section 21.1 of the Succession Law Reform Act radically changed the landscape, as it granted the court the authority to declare a will to be valid even if it was not properly executed pursuant to the other provisions of the act, as long as the court was satisfied that the instrument set out the testator’s testamentary intentions or an intention to revoke, alter, or revive an existing will.  As such, a mechanism now exists to cure defects in the formalities of due execution by allowing an interested party to apply to the court for an order declaring the will to be valid.

Although section 21.1 came into effect in January 2022, it took more than a year for the first stream of cases to emerge on the court’s interpretation and application of the provision.  In most of the cases, the court has appeared quite willing to exercise its discretion in declaring an instrument to be valid.

Cases

In Vojska v Ostrowski, for example, the court considered a case in which a will was missing the signature of one of two witnesses purely as a result of human error.  The drafting lawyer, as a witness, had erroneously forgotten to apply his signature to the will.  The court accepted that there was no dispute that the will set out the testator’s intentions, that the error had been inadvertent, and that the error was the lawyer’s and not the testator’s.  The court ordered that the will was valid.

However, other cases have emerged to suggest the extent of the evidence required to confirm a will expresses a testator’s intentions is not minimal.  In White v White, the applicant brought an application seeking production of a lawyer’s file on the basis that it might contain a draft will that had purportedly been in preparation, but not finalized or executed, at the time of the testator’s death.  The applicant argued that whatever draft had been prepared might be subject to a declaration of validity pursuant to section 21.1.

The application of section 21.1 was a secondary issue in this case, as the primary relief sought was the production of the lawyer’s file.  However, the court did note that it was unlikely that section 21.1 would apply on the facts – notably, as there was no indication that the draft will was a true expression of the testator’s testamentary intentions as the testator had not had an opportunity to review the draft.

While these comments were made in obiter, they are nonetheless helpful in qualifying the language of section 21.1 particularly given the limited case law available.  Although a draft instrument may purportedly set out a testator’s intentions, whether that instrument is deemed to be an expression of those intentions for the purposes of section 21.1 requires some positive steps taken to acknowledge or approve those intentions.  In some cases, a draft document alone, in the absence of corroborating evidence of the testator’s knowledge or understanding, may not be sufficient.

If you require assistance with a will, our Wills & Estates Group will be happy to help.

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