Changes to the Succession Law Reform Act (SLRA), by Chris Materny
Earlier this year, some significant changes came into effect in the Province of Ontario relating to Wills and Estates Law. Prior to these changes, Ontario courts had no power to validate a Will that did not comply exactly with all the formalities required by the legislation. This is known as a “strict compliance” regime. As a result of the recent changes to the legislation, Ontario courts now have the power to order that a document is a valid Will even if it does not comply exactly with all the required formalities. Such legislation has already been enacted in eight other provinces and is commonly referred to as a “substantial compliance” regime.
The courts, however, will only accept a document that is “substantially compliant” with legal requirements under some circumstances. The question remains, to what degree can a document deviate from the formal requirements and still have the court declare it to be a valid Will? The legislation does not, in fact, require any level of compliance with the formal requirements for the court to exercise its discretion and validate a Will. Rather, the court must be satisfied that the document sets out the deliberate and final testamentary intention of the deceased. As such, the amendment is more accurately characterized as a “will-validation” provision. The courts can validate any document if they are satisfied that the document sets out the deceased’s testamentary intention. For example, a will that is drafted but not signed can be submitted to the court for validation.
As this legislation has been enacted in Ontario only recently, it remains unclear how the law will operate. Caselaw, however, from other provinces interpreting similar legislation can provide some guidance. In Hubschi Estate (Re), the British Columbia Supreme Court concluded that the deceased’s non-compliant Will was valid. The deceased drafted a Word Document before his death that said “Get a will made out at some point. A 5-way asset split for remaining brother and sisters. Greg, Annette, or Trevor as executor.” The court was satisfied on a balance of probabilities that the document was a full, final, and fixed expression of the deceased’s testamentary intentions. Conversely, in Dickinson-Starkey Estate (Re), the British Columbia Supreme Court found that a series of handwritten notes and changes on the deceased’s existing valid Will could not be cured under that province’s “substantial compliance provision.” The court considered that the number of handwritten notes and changes gave the impression of a draft or work in progress, rather than a final testamentary intention.
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In the above cases, the court considered not just the degree of deviation from the formal requirements, but whether, on a balance of probabilities, the documents represented the fixed and final testamentary intentions of the deceased.
The recent changes will provide flexibility to Ontario’s previously rigid “strict compliance” regime, however, the process of validating an improperly executed Will surely will be costly and time consuming.
If you would like to prepare a Will that is properly executed, Malicki Sanchez will be able to assist you. call: 905 274 1650
