Substantial Compliance: What Constitutes 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.
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.