Having come into force on January 1, 2022, Section 21.1 is a relatively recent addition to the Succession Law Reform Act (“SLRA”). Section 21.1 is a validating provision, which allows the courts discretion to declare a will valid even if it does not meet the formalities of execution set out under section 4 of the same act. Those formalities are as follows:

1. The will must be signed by the testator (or someone else in his/her presence or direction);
2. Two or more people witness the testator signing the will; and
3. Two or more witnesses sign in the testator’s presence.

Case law concerning the application of section 21.1 continues to develop, with the case of White v. White closing out 2023. With that, now seems a good a time as any to look at the newest line of published cases in 2024.

Marsden v. Hunt et al., 2024 ONSC 1711 (“Marsden”)

In Marsden, the court considered a will missing the signature of one of two witnesses, a former law clerk of the law firm that drafted the will.

The Court applied the two-part test that governs the application of section 21.1, which much be satisfied on a balance of probabilities:

1. Is the document authentic; and
2. Does the document set out the “testamentary intentions” of the deceased, such that it reflects the “fixed and final intention” as to the disposal of the deceased’s property on death

The court found that the will met both parts of the test. The authenticity of the document was supported by unchallenged sworn evidence from the law clerk in question that they had witnessed the deceased sign the will. The testamentary intentions of the deceased were supported by the title of the document, “THIS IS THE LAST WILL AND TESTAMENT OF ME, JANICE KAY HUNT” and by the fact that the document revoked previous wills.

Re: O’Neill Estate, 2024 ONSC 2228 (“O’Neill”)

In O’Neill, the court considered a will that was not properly witnessed. The applicant provided evidence that assisted the deceased make the will and watched the deceased sign the will, but did not sign his name as a witness because he was a beneficiary under the will. Two other individuals did sign the will, but were not actually present when the deceased signed the will.

The applicant’s evidence that he assisted the deceased make the will and watched them sign it was not contested. The court was satisfied the document was authentic, and that it set out the testamentary intentions of the deceased.

The circumstances of the will’s execution were such that the court considered whether the provisions of the will concerning the applicant should be voided under section 12 of the SLRA. The court acknowledged that the applicant’s role as both a witness and a beneficiary was discouraged by the statute. However, the provision voiding the bequest to a witness is not absolute. Section 12 (3) provides an exception where the Court is satisfied that no undue influence was exerted.

Salmon v. Rombough, 2024 ONSC 1186 (“Salmon”)

In Salmon, the court found that a notebook comprising excerpts of a prior 2012 will, photocopied and pasted into the notebook together with handwritten annotations and signed by the deceased constituted a codicil to the prior 2012 will, and that the two documents together were valid and fully effective as the deceased’s last will and testament.

In its application of the test, the court noted that a testator’s familiarity with and history of executing solicitor drafted and witnessed wills are a relevant consideration. Here, the court found that though the deceased had such a history, the deceased’s intentions bring the notebook to a lawyer were frustrated by circumstances beyond their control.

[1] White v. White, 2023 ONSC 7286.