This blog has been written by Mohena Singh, Associate at Fasken LLP

In Ontario, there have always been strict and specific guidelines as to what makes a will a testamentary document. The Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) states that a will is valid only if it is in writing and it is signed by the testator and two witnesses, who do not benefit under the will, in the presence of the testator. However, recent changes to the SLRA have now expanded the scope of what can be considered a valid will in Ontario.

Section 21.1 of the SLRA states:

“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.” [Emphasis added]

Although this gives the Court broad power to find improperly executed wills as valid testamentary documents, this also provides for uncertainty as to what will now be considered a will. The Ontario Superior Court in Cruz v Public Guardian and Trustee found that a will that was not signed by any witnesses was still in fact a valid will even though it did not meet one of the formalities that are mandated under the SLRA. On the other hand, in White v White, the Ontario Superior Court commented that a draft will does not meet the standard to allow the Court to find it a valid and fully effective will.

Since Ontario has recently become a substantial compliance jurisdiction, which means that it allows documents to be admitted to probate that do not comply with all technical statutory formalities, the Court has relied on other provincial case law to determine what constitutes an appropriate use of their dispensing power. Both cases cite the BC case of Estate of Young which states that the term “testamentary intention” means more than a person’s expression of how he or she would like his or her property to be disposed of after death. Per Justice Dickson, “The essential quality of the term is that there is a deliberate or fixed and final expression of intention as to the disposal of the testator’s property on death.”[1] The finding of whether a testator’s intention was deliberate and final is subjective and highly fact-sensitive. For instance, in White v White, the Court commented that it is common for changes to be made to a will right up until the execution, therefore a draft will is not indicative of a fixed or final intention of the testator. Whereas, in Cruz v Public Guardian and Trustee, the Court found that, notwithstanding that the will in question was not executed, the testator’s intention was final as he put the will in an envelope and gave it to the executor with a note to have the will witnessed. On a balance of probabilities, the Court found that the document given to the executor purported to be a will and s. 21.1 of the SLRA was created to fix precisely these types of mistakes.

Even though the Court now has an additional power to allow wills that would be considered ineffective under the SLRA to be probated, the case law is still unclear as to how s. 21.1 of the SLRA will be interpreted and to what extent the Court will go to make an invalid will valid. The only way to guarantee your testamentary intentions are fulfilled and any uncertainty is avoided is if proactive and proper steps are taken to execute a will that does meet the formalities of the SLRA.

Some key takeaways from the cases that have interpreted this new provision are the following:

• It is never too early to start planning your estate and ensuring that you have an executed and valid will;
• To ensure that your will is upheld under the SLRA, without having to resort to the application of section 21.1 of the SLRA, a will must meet the requirements set out in sections 3 and 4 of the SLRA, which are:

1. • The will must be in writing;
   • The will must be signed by the testator;
   • The testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
   • Two or more of the attesting witnesses subscribe the will in the presence of the testator.

• Ensuring you have met all the formalities of a valid will to avoid any litigation or unnecessary costs to your estate that would be incurred if your beneficiaries have to go to Court to apply for the validity of your will; and
• Speak to an estate planner so that your will in fact relays your testamentary intentions.

Thank you for reading.

[1] 2015 BCSC 182 at para 35.