Until recently, a Will in Ontario had to meet the strict formal validity requirements set forth in the Succession Law Reform Act1 (the “Act”) in order to be valid. This meant that a Will had to be in writing and signed by the testator in the presence of two witnesses who also signed the document. Witnesses were not required if the Will was a holograph Will; a document wholly in the handwriting of the testator, signed by the testator, and that expressed a final testamentary intention.
However, in 2022, a new provision in the Act came into force to validate a Will made by someone who dies after January 1, 2022. Section 21.1 now allows for a court application to the Superior Court of Justice to validate a document purporting to be the final Will of a deceased person. If the court is satisfied that a document which was not properly executed in accordance with the Act nevertheless sets out the testamentary intentions of a deceased person then the Court can order that the document is as valid and fully effective as the Will of the deceased in the same manner as if it had been properly executed. This type of provision is often referred to as a “substantial compliance” provision.
While this is a new provision there have been several cases this year that give guidance on the topic and show the emergence of a legal test involving consideration of whether the document demonstrate the fixed and final intentions of the deceased. Guidance can also be found in how the court has approached Will interpretation generally. The well-settled approach is that the court will give effect to the intentions of the testator, determined based on the contents of the document itself and admissible extrinsic evidence gleaned from the court putting itself in the position of the testator with the information known to the testator at the time the Will was made (the so-called “armchair rule”).2
In Vojska v. Ostrowski,3 the court validated a Will on which one witness signature was missed. There was evidence that the deceased and her husband had attended with their lawyer to sign the Wills in question. When the wife passed away it was discovered that, although the husband’s documents were properly executed, one witness signature was missing from the wife’s Will. The court referred to this as a “textbook example of a case for which the new power was intended” and ordered that the Will was valid despite its failure to comply with the formal validity requirements.
In Cruz v. Public Guardian and Trustee,4 the deceased prepared a Will which he signed and placed in a sealed envelope. Within the envelope he also included a note asking the executor to have the Will witnessed. It was clear to the court that the deceased intended this to be his final Will but had a misunderstanding of the formalities required. The court went on to say that “fixing this type of mistaking is precisely what s. 21.1 seems to be for.”
In Groskopf v. Rogers,5 the deceased had filled out a pre-printed document and signed it. Although the document contained spaces for witness signatures, it was not witnessed. The document was undated and stored in a lock box with a number of other papers. In validating the document as a Will, the court considered the contents of the other papers it was found with, several of which referred to the document as the deceased’s Will.
White v. White6 was an application seeking disclosure of a lawyer’s file rather than an application to validate a Will. A son of the deceased sought to obtain a draft Will he believed was contained in her lawyer’s file in order to attempt to validate the draft Will under s. 21.1. The court referred to caselaw from British Columbia (where there is a similar provision) that in order to validate a document as a Will it must record a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death” and found that it was unlikely that a draft Will would meet this threshold. The Court determined that the son was not entitled to production of the lawyer’s file, particularly in the circumstances where he had not challenged the existing prior Will.
The reported cases this year show that the court will validate documents which were not properly executed through inadvertence, mistake, or a failure to appreciate the formal validity requirements but will not necessarily authorize an expedition into a drafting lawyer’s file in an attempt to find drafts that may be more favourable to a beneficiary. As the cases emerge, it appears that the court will consider whether the document shows the fixed and final testamentary intentions of the deceased.
1 RSO 1990, c.S.26
2 Barsoski Estate v. Wesley, 2022 ONCA 399
3 2023 ONSC 3894
4 2023 ONSC 3629
5 2023 ONSC 5312
6 2023 ONSC 3740