On January 1, 2022, Ontario moved away from being a strict compliance jurisdiction and towards a substantial compliance jurisdiction. This trend follows suit of many of Ontario’s provincial neighbours, such as British Columbia, Alberta, and Manitoba, among others. The change results from the introduction of section 21.1 of the Succession Law Reform Act (“SLRA”), which provides that the Court may now find a document to be a valid will even if it does not strictly comply with the formalities of execution set out in the SLRA.
This development has opened the door for documents with various ‘defects’ that would ordinarily render them non-compliant with the SLRA, to be admitted for probate. In other words, the Court may exercise its discretion under section 21.1 and deem a document to be a valid last will and testament or other testamentary document.
In Ontario, sections 3, 4 and 7 of the SLRA set out the execution requirements with which every last will and testament must comply:
Will to be in writing
3 A will is valid only when it is in writing.
Valid execution of will
4 (2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
Position of signature
7 (1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.
7 (2) A will is not rendered invalid by the circumstance that,
(a) the signature does not follow or is not immediately after the end of the will;
(b) a blank space intervenes between the concluding words of the will and the signature;
(c) the signature,
(i) is placed among the words of a testimonium clause or of a clause of attestation,
(ii) follows or is after or under a clause of attestation either with or without a blank space intervening, or
(iii) follows or is after, under or beside the name of a subscribing witness;
(d) the signature is on a side, page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or
(e) there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.
7 (3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with section 4, 5 or 6 or this section does not give effect to,
(a) a disposition or direction that is underneath the signature or that follows the signature; or
(b) a disposition or direction inserted after the signature was made.
When a last will and testament does not strictly comply with all of these requirements, section 21.1 may come into play. Section 21.1 of the SLRA provides:
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….
While subsection (1) of section 21.1 is the main thrust of the new substantial compliance power, it is important to note that per subsection (3), a document may only be validated by the Court if the deceased died on or after January 1, 2022. The date of the document itself is not a relevant consideration for these purposes.
Section 21.1 gives the Court the ability to validate a non-compliant document as a valid will if the Court is satisfied that:
1. The document is authentic; and
2. It sets out the testamentary intentions of the deceased.[1]
Simply, if the Court is not satisfied that the document is authentic or that it does not set out the testamentary intentions of the deceased, the Court will not validate the document, and the document cannot be admitted for probate. This test must be satisfied on the balance of probabilities.[2]
At the first stage of the test, in order to determine if a document is authentic, the Court will look at a variety of factors, including, but not limited to:
a) The chain of possession of the will document;[3]
b) Where the will document was found;[4] and
c) Whether the handwriting on the document has been identified as belonging to the deceased.[5]
In order to satisfy the second stage of the test, the non-compliant document must reflect the deceased’s true testamentary intentions. The document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.[6] In undertaking this analysis, the current trend has favoured admitting extrinsic evidence to aid in curing defects with non-compliant documents. This type of evidence can help the Court to frame the deceased’s point of view when they executed their will. Further, the Court will look to the particular circumstances of the deceased in order to ascertain the plain intention behind the will.[7]
Given the relatively recent changes to the legislation, the case law surrounding this area is not yet fully developed. We do know, however, that the Court’s analysis is very much fact driven and it is important to keep an eye on developing case law to review how the new section is being applied. While still in its early days, section 21.1 of the SLRA has already proven to be a practical and useful tool for parties and for the Courts to ensure that the testamentary intentions of testators around the province are preserved.
[1] Vojska v. Ostrowski, 2023 ONSC 3894, (“Vojska”) at para. 21.
[2] Cruz v Public Guardian and Trustee, 2023 ONSC 3629, (“Cruz”) at para. 6.
[3] Kertesz v. Kertesz, 2023 ONSC 7055 (“Kertesz”), at para. 3.
