January 2022 brought significant changes to a governing statute in estates law: the Succession Law Reform Act[1]. One such change provides the Court with authority to declare a will valid and fully effective despite its non compliance with legislative requirements for formal execution.[2] The legislative requirements provide that a will is not valid unless: (a) it is signed by the testator (or another person directed by the testator); (b) two or more people witness the testator signing the will; and (c) the witnesses sign in the testator’s presence.[3]
A line of cases has developed in which the court considers s. 21.1(1) of the SLRA: Grattan v. Grattan (unreported)[4], Cruz v. Public Guardian and Trustee[5], White v. White[6], and Vojska v. Ostowski[7]. The proposed will in each respective case can be simply described as the following. Grattan: a finalized will prepared by a lawyer but that was never signed by the testator nor witnessed. Cruz: a holograph will[8] that was unsigned and unwitnessed. White: the possibility of a draft will in preparation based on lawyer’s notes of the testator’s instructions. Vojska: a will signed by the testator and one witness but missing the signature of the other witness (the lawyer who prepared the will).
In interpreting s. 21.1(1) of the SLRA, the Court in Ontario reviewed the case law in the Western provinces which have interpreted and applied similar legislation. In Ontario the court will look at whether the proposed “court-ordered” will is (i) authentic; and if so whether it contains (ii) a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”.[9]
In White the issue before the court was not whether a draft will not reviewed by the testator could be a valid will. (It was, in fact, whether the court should order production of a lawyer’s will file absent a cause of action asserted by any party). However, as a result of the facts in White the court pondered whether s. 21.1(1) could go that far. With the right case on the right facts it could be possible. We will have to wait and see.
[1] Succession Law Reform Act, R.S.O. 1990, c.S.26 (“SLRA”).
[2] SLRA, s. 21.1(1).
[3] SLRA, s. 4(2).
[4] Reasons for Decision released February 1, 2023. (“Grattan”).
[5] 2023 ONSC 3629 (CanLII) (“Cruz”).
[6] 2023 ONSC 3740 (CanLII) (“White”).
[7] 2023 ONSC 3894 (CanLII) (“Vojska”).
[8] A holograph will is a will written in the testator’s handwriting.
[9] Cruz at para 21.
