Historically in Ontario, as in many other jurisdictions, the doctrine of strict compliance with the formalities of execution of a will was a fundamental legal principle that governed how wills were created and validated. This doctrine set out specific requirements that must be met for a will to be considered legally valid. Failing to meet these requirements would result in the will being declared invalid, which meant that its provisions would not be enforced.
Some of the elements of strict compliance included:
- A will must be in writing,
- The testator must sign the will at the end of the document or, if they are unable to do so, another person can sign on their behalf in their presence and by their direction,
- The will must be signed by at least two witnesses who are present at the same time when the testator signs or acknowledges their signature on the will, and
- The witnesses must also sign the will in the presence of the testator.
A failure to adhere to these strict rules would often result in an unintended consequence whereby an otherwise valid will that expressed accurately the testators’ intentions, was set aside.
On April 19, 2021, Bill 245, known as the Accelerating Access to Justice Act, received royal assent. This bill introduced a significant change to the Succession Law Reform Act (SLRA) by adding a new Section 21.1(1).
The new 21.1 reads:
21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.
Under this new provision, the Superior Court of Justice in Ontario now has the authority to validate a will even if it does not strictly adhere to all the required formalities. However, for the court to validate such a will, it must be satisfied that the document or writing in question clearly expresses the testamentary intentions of the deceased individual. This amendment represents a shift from the previous requirement of strict compliance to a more flexible approach known as substantial compliance. These changes are applicable to individuals who passed away on or after January 1, 2022.
There have been only a handful of decisions since the passing of the new section 21.1.
Grattan v. Grattan: an unsigned and unwitnessed draft will was declared valid and of full effect.
Cruz v. Public Guardian and Trustee: an unsigned and unwitnessed will was declared valid and of full effect.
White v. White: an email chain organized to prepare a draft will with a lawyer and the draft that was never signed were not considered to be a valid will.
Vojska v. Ostowski: the lawyer had forgotten to sign as a witness when signing many other testamentary documents on the same date. The will was found to be valid and of full effect.
If you find yourself in a situation where you are questioning the validity of a will, especially one that may not meet all the traditional formalities, it’s crucial to consider the potential impact of Section 21.1 of the Succession Law Reform Act. This provision could potentially offer a lifeline for contested wills. However, the interpretation and application of this new legal framework can be complex and require a nuanced understanding of the law. Reaching out to an experienced estate litigation lawyer is a prudent step.