December, 2023

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Substantial Compliance: What Constitutes a Valid Will in Ontario? 

A person signing a document to represent the requirements of a valid will in Ontario

Disclaimer: This article is intended for the purpose of showing what constitutes a valid will in Ontario. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice. It does not purport to be exhaustive. 

Crafting a will is vital in securing your estate’s future, yet it is important to ensure that you have created a valid will. However, understanding the law’s requirements can feel overwhelming. Contrary to popular belief, a will could be relied upon, even if it did not follow the formalities of a valid will. 

This article will discuss what makes a will legal and how the law changed in 2022. We will look at recent cases where wills were validated and what that means for executors. 

Elements for a Valid Will in Ontario

By way of review, the basic requirements for a valid will in Ontario are outlined in the Succession Law Reform Act (SLRA). All wills must be written and it must be dated and signed. There are two broad types of wills: Holographic wills and formal wills. 

Holographic wills, meaning those created entirely in your handwriting, have their own requirements, which we discussed in this article

Formal wills must be in writing but are typed or printed. They must accurately and unambiguously reflect the intentions of the testator (the person making the will). 

A legal will in Ontario would have three signatures – it is signed by the testator and two witnesses. The testator must sign in the presence of two witnesses, and the witnesses must sign in the presence of the testator. 

This principle applies to any will – whether you ask a lawyer to make your will or produce it using an online will platform. 

Only some people can be a valid witness. A witness must be over the age of majority (18) and not be a beneficiary of the will or a spouse of a beneficiary. 

What is “Substantial Compliance”? 

Previously, if any of those legal requirements were missing, a will would be considered invalid. For example, that means that if a will was missing a witness’ signature, that will would not be legally valid. If that were the only will available, intestacy laws would apply, and the courts would treat your estate as if you had died without a will.  

However, the SLRA was amended in 2022 for all deaths after January 1, 2022. A new section, 21.1, was added, which reads: 

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. 2021, c. 4, Sched. 9, s. 5.

That means that even though a will might not strictly comply with the requirements noted above, you can ask the court to validate the will or deem it a valid last will and testament. A Court may determine that it be treated as if it were executed correctly. 

For the court to validate a document that does not meet the requirements as noted in the SLRA, it must be satisfied on a balance of probabilities that the document

  • is authentic
  • reflects a “deliberate and final expression” of the testator’s intentions regarding their estate plan.  

Recent Case Law Around What Makes a Valid Will

 Since the introduction of Section 21.1 of the SLRA in January 2022, a range of cases have been decided that help us see how substantial compliance can be applied in estate law.

Vojska v. Ostrowski

The Case: Vojska v. Ostrowski

The Facts: The applicant was the executor of his late mother’s estate. He and his sister were both sole beneficiaries. The lawyer overseeing the wills failed to sign their mother’s will despite signing all powers of attorney and their father’s will. No affidavits of execution were prepared, but the lawyer had billed their parents for the services, including the will signing.

The Court validated the will. The court recognized that the document reflected the mother’s final wishes, despite the oversight in proper execution due to the lawyer’s failure to fulfill formalities. 

Groskopf v. Rogers et al

The Case: Groskopf v. Rogers et al

The Facts: The deceased had completed a fill-in-blanks style document in her own handwriting, signifying it as her Last Will and Testament without dating or witnessing it. The document excluded the respondent as a beneficiary. At the time the document was created, the deceased and respondent had a strained relationship. They later reconciled, with the respondent becoming the deceased’s primary caregiver. Does that mean that the deceased had changed her final wishes? 

The Court validated the will.  The court determined that the document met the necessary criteria and represented the deceased’s fixed and final testamentary intentions when she created it. Further, the court emphasized that the subsequent reconciliation did not alter the intentions set out in the document. There was no evidence indicating the deceased’s intention to include the respondent as a beneficiary.

Grattan v. Grattan

The Case: Grattan v. Grattan (Grattan Estate) 

The Facts: A lawyer prepared a will for the deceased and sent it to the testator for her review. The testator made minor revisions. However, the will remained unsigned as the Deceased passed away suddenly before its formal execution.

The Court validated the will. It emphasized that a lawyer prepared the will based on clear and direct instructions, representing the deceased’s settled and unambiguous intentions. Additionally, the short period between the document’s review, the Deceased’s approval, and her passing supported the court’s finding that these were her ultimate intentions and that this was, in fact, a valid will. 

What does this mean for Estate Trustees (or Executors)?

The previous system of strict compliance was more straightforward in many respects. Previously, the absence of three signatures would quickly rule out a document as a valid will. However, with the current legislation, an unsigned document, if deemed to express testamentary wishes, could be considered relied upon in Ontario. 

If you are an executor of an estate where the deceased died after 2022, this change is noteworthy for you. Regardless of its signature status, you must consider any document as potentially carrying valid testamentary wishes. 

We strongly recommend seeking legal advice when presented with such materials that could be validated as a will. Together, we can assess the feasibility and necessity of initiating a court application to determine the document’s validity, safeguard your interests, and adhere to the deceased’s wishes.

If you intend to bypass the probate process, you should know the heightened risks of administering an estate without a Certificate of Appointment. In cases where a document is discovered and validated, you may run the risk of facing liabilities because of the absence of probate. 

Beeksma Law: Your Estate Lawyers 

When securing your estate’s future or managing the responsibilities of an estate trustee, Beeksma Law offers the expertise and guidance you need. Our team focuses on estate law and can advise on everything you need to know when making a will. Creating a solid estate plan is easier than you might think! 

Beeksma Law’s expertise also provides the necessary roadmap for estate trustees to navigate their responsibilities. Their guidance ensures each step of estate administration complies with the law, minimizing complexities and risks inherent in these responsibilities. 

Schedule your complimentary consultation today to get started. 

Estate Planning in Ontario – Pet Trusts & Other Care for Your Pet 

an older couple sitting outside with the dog, representing how important pets are and how you should create a pet trust.

Disclaimer: This article is intended for the purpose of providing for your pets, including creating pet trusts. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice. It does not purport to be exhaustive. 

Whether or not you call them your fur baby, our pets are more than animals for many of us. To many Canadians, they are beloved family members, providing companionship, joy, and comfort. 

Because their lifespans tend to be much shorter than ours, we assume we will outlive our pets. However, that is not necessarily true. So, just as you meticulously plan for the well-being of your loved ones in your estate plans, it’s crucial not to overlook your furry or feathered friends. 

If you are a pet owner, how can you include your pets in your estate plan? What are your options? That is what we will consider in this article. 

The Legal Landscape in Ontario: Pets as Property

Under Canadian law, including in Ontario, pets are considered property, and as such, they lack the legal capacity to own or inherit assets. This classification presents unique challenges when explicitly leaving money or property directly to your pets in your will. However, this doesn’t imply a lack of options for securing their future.

There are three basic ways to ensure your pets are cared for after you’re gone: 

  1. Designate a caretaker
  2. Designate an organization to act as a caretaker
  3. Set up a pet trust

Designating a Caretaker: Choosing Guardianship for Your Pet

Similar to appointing guardians for minors, identifying a trustworthy caregiver to care for the pets after you’re gone is crucial. Consider family members or close friends who share a bond with your pets and are both willing and capable of providing lifelong care. A heartfelt conversation with your chosen caretaker is essential to ensure they understand and accept this responsibility. While a primary caretaker is crucial, it’s wise to designate a backup in case your original caregiver is unable to care for your pet. 

Additionally, consider charitable organizations or shelters specialized in pet care. For instance, most Humane Societies offer a pet stewardship program, assuming custody and finding loving homes for pets after their owners pass away.

Financial Provisions: Ensuring the Financial Security of Your Pet

To alleviate financial concerns associated with pet care, consider you should leave an amount of money to your pet guardian in your will. This fund can cover expenses like veterinary care, grooming, food, and any unforeseen medical treatments your pet might require. 

How much should you leave for pet care? That depends. Consider how long your pet’s life is expected to be, what costs you are currently incurring and other factors. 

Incapacity Planning: Securing Care During Your Lifetime

As we have noted before, you need more than a will. What happens if you become incapacitated and can no longer care for your pet? Trusts and powers of attorney can be instrumental in addressing your pet’s care in case of your incapacity. While pets can’t inherit funds directly, a trust can designate funds for your pet’s care, with conditions tied to the designated caretaker ensuring proper care.

Setting up a Pet Trust: Ensuring the Future Care of Your Pets

While various trusts can be drafted, establishing a trust for pets demands precision to ensure its legality and enforceability. As the legal landscape surrounding trusts for pets continues to evolve, three fundamental rules are worth mentioning.

Beneficiary Enforcement and Legal Standing

One crucial element of any trust is that there must be a beneficiary or trustee who can enforce the terms of the trust. Practically and legally speaking, pets obviously lack the capacity to enforce a trust. 

Purpose and Charitable Intent 

Trusts must serve a clear purpose or have identifiable beneficiaries unless their purpose is deemed charitable. For instance, trusts designed for research and support surrounding a specific disease are considered charitable in Ontario. However, trusts created solely for pets might not meet the criteria for charitable purposes under the law.

Lawful Conditions and Public Policy

A trust can make gifts conditional on specific actions, provided these conditions are lawful and do not conflict with public policy. Creating a pet trust that adheres to these rules involves designating specific beneficiaries. As part of your trust, you can include instructions for the care of your pets. Funds from the trust are allocated for the explicit purpose of caretaking.

Termination Date

Additionally, each trust requires a termination date, signaling the final distribution of the trust fund. In the case of a pet trust, the termination typically coincides with the death of the last surviving pet. Any trust funds left are distributed per the terms outlined in your will. 

Creating an Estate Plan For Your Peace of Mind

Navigating the complexities of caring for every part of the family after you’re gone can be overwhelming. Seeking guidance from an experienced estate lawyer, such as the professionals at Beeksma Law, can streamline the process. An estate lawyer can help formalize legal arrangements, ensuring your directives concerning your pet’s care are documented, legally sound, and enforceable.

Incorporating your pets into your estate planning demonstrates a commitment to their well-being and happiness. Your furry friends hold a special place in your heart and deserve careful consideration in your plans for the future.

At Beeksma Law, our dedicated estate planning team understands the significance of including your pets in your estate plans. Contact us today for compassionate legal guidance to secure the future of your beloved pets.