Ontario as a Substantial Compliance Jurisdiction (Almost) Two Years In

Ontario is almost two years into being a substantial compliance jurisdiction. The courts are beginning to hear matters seeking to validate documents under s. 21.1 of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”). 

Court-ordered validity

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.

Before January 1, 2022, Ontario was a strict compliance jurisdiction. The SLRA sets out specific validity requirements for a will. Section 4(2) required a signature of the testator at the end of the document, witnessed by two or more witnesses present at the same time and attesting in front of the testator. 

Now the courts must decide whether the deceased’s intentions have been made out despite deficiencies in execution. The burden is on the party bringing forward the document to establish the document’s authenticity.

In Cruz v Public Guardian and Trustee, 2023 ONSC 3629 the deceased prepared his own will which he signed and sealed in an envelope. He included a note in the envelope asking his estate trustee to have the will witnessed. Unfortunately, the deceased misunderstood what “witnessing” entailed. He died on January 13, 2022, just 12 days after section 21.1 came into force. His will was declared valid. 

The error in execution was by the lawyer in Vojska v Ostrowski, 2023 ONSC 3894. The deceased and her husband signed wills and powers of attorney in 2011. All signatures were present except the lawyer’s signature on the deceased’s will. They did not complete affidavits of execution, but the lawyer stored the wills at his office. 

Justice Myer commented that this was the type of case for which s. 21.1 was intended. There was “no doubt of the authenticity of the will or that it ‘sets out the testamentary intentions of a deceased’ as required in s. 21.1 of the SLRA.” It was clearly through inadvertence the lawyer failed to sign. The court declared the will valid. 

While White v White, 2023 ONSC 3740 is not an application under 21.1 of the SLRA, there is speculation in obiter on potential issues arising from s. 21.1 and its application in relation to s. 9 of the Estates Act, RSO 1990, c E.21.

The deceased’s son brought an application for direction seeking the file of a lawyer the deceased contacted in the months before her death. She had been seeking to update her 2014 will but she passed away before this could take place. Although a new will was never signed, the son was seeking to have any draft produced. He would determine if he wished to bring an application under s. 21.1 challenging the 2014 will once he had viewed the lawyer’s file. 

The applicant relied on section 9 of the Estates Act which helps beneficiaries obtain a will if they know or have reasonable grounds to believe someone has a deceased’s will. However, the lawyer in this case did not have the deceased’s will. At best, this lawyer had a draft to which s. 21.1 potentially applied. If section 9 could be used to retrieve documents to which s. 21.1 potentially applied, the use of section 9 would then become a fishing expedition.

Justice Myers stated that he did not accept the applicant’s interpretation of s. 9 “absent case law showing that such a broad interpretation has been adopted.” Further, he questioned allowing such a discovery process when a will challenge had not yet been brought. He questioned the cost and delay to the estate and its beneficiaries when such documents could be sought by the estate trustee once a certificate of appointment was received. 

In the end, he invited the applicant to return with researched legal arguments on the issues he had addressed; however, Justice Myers did provide his opinion that it was “dubious that s. 21.1 could apply to these facts.” It was not clear that the draft had been reviewed by the deceased or that it was at the execution stage.

The takeaways from the caselaw so far are that if a will suffers from a simple error in execution there is a good chance it is valid. For more complex matters, it has yet to be seen the direction the law will take. A thorough review of the case law in other Canadian jurisdictions which employ the substantial compliance regime will be useful to advise anything beyond a simple execution error. 

If you have questions about the validity of a loved one’s will, please contact us to discuss how our office can assist.