By Stuart Gordon, Articling Student

Introduction

In Ontario, a will must meet certain statutory requirements outlined in the Succession Law Reform Act (“SLRA”) to be considered valid.  In January 2022, the SLRA underwent some major changes, including s. 21.1(1), which now allows a Court to order that a will be considered valid, even if it does not comply with all the requirements.  Previously, wills that did not comply were considered invalid and could not be saved by a Court.

What section 21.1(1) can do

Section 21.1(1) can validate wills that either: 1) lack a signature or; 2) include a signature that was not properly witnessed. 

Lack of Signature

In Vojska v Ostrowski, 2023 ONSC 3894, the testatrix had attended a lawyer’s office to sign her will, which was witnessed by her lawyer and his law clerk.  At the time, everyone thought testatrix signed all necessary portions of the will, but it was later revealed that one portion of the will had been left unsigned.  Based on a strict application of the SLRA, the testatrix’s will was invalid because it lacked one signature.

One of the testatrix’s daughters brought an application for the Court to validate her mother’s will under s. 21.1(1).  Justice Myers did so, noting that the case was a “textbook” example of when this new provision should be used, and added that because the will was drafted by a lawyer and clearly represented the fixed and final intention of the testatrix, it could be deemed valid despite lacking one signature. 

Lack of Witness

In Cruz v Public Guardian and Trustee, 2023 ONSC 3629, the testator drafted his will by himself, signed it, then passed it to his executor in an envelope and requested that his executor get the will ‘witnessed’.  Unfortunately, the testator passed away before his signature could be ‘witnessed’.

Justice Myers employed s. 21.1(1) to find the will to be valid, noting that the will expressed a “deliberate or fixed and final expression of intention” on the part of the deceased concerning how he wanted his estate administered.  Evidence of a fixed and final intention included the fact that the testator passed his will to his executor under the assumption that it was otherwise valid, but misunderstood the requirements for witnessing.  For Myers J., this ‘in-person’ handoff of the testator’s will also resolved any question of fraud, as it was the testator, not a third-party, who communicated to his executor that it was his will. 

What section 21.1(1) cannot do

In the Estate of Harold Franklin Campbell, the court outlined the limits of section 21.1(1).  The testator’s son Christopher Campbell brought an application for the court to determine whether his deceased father’s will was valid. 

After his first wife passed away, the testator executed a will. Four years later, the testator married his second wife.  As a consequence of an old provision of the SLRA that was in effect at the time, the testator’s will was considered revoked by marriage. During his second marriage, the testator made two handwritten notes and stapled them to his will.  The first note described the items the testator wanted his second wife to receive from his estate.   

Christopher argued that the court could use s. 21.1(1) to find that his father’s notes revived his previous will. While Chang J. did conclude that the will was revived pursuant to s 19(1)(b) of the SLRA, he noted that the provisions of s. 21.1(1) did not apply in this context. He opined that the purpose of s. 21.1(1) is to give courts the ability to deem a document that sets out a deceased person’s fixed and final intention to be valid, even if it does not comply with all the requirements of the SLRA.  However, s. 21.1(1) does not give the Court the power to “read in” intentions which are not already present in the document or other evidence.

Here, there was nothing in the testator’s handwritten notes that stated or referenced the testator’s knowledge that his will had been revoked and/or indicated his further intentions to revive or renew his will.  Therefore, Chang J. could not apply s. 21.1(1) to revive the testator’s will because doing so would be ‘reading in’ an intention not clearly expressed in the testator’s two handwritten notes.

How one can Gain Access to Documents to be Validated?

In White v White, 2023 ONSC 3740, the court dealt with the question of how a potential beneficiary could gain access to documents that could be validated by the court under s. 21.1(1).

Before she passed, the testatrix had consulted a lawyer with the intention of changing her will, but passed away before doing so.  Following her passing, the estate trustee named under her will began to administer her estate.

The testatrix’s son brought an application to access the notes and records of his mother’s lawyer.  He wanted to determine if there was a draft will that potentially represented the testatrix’s fixed and final intention, which, if in existence, he argued should be deemed a valid will under section 21.1(1) of the SLRA.  The applicant intended for this draft to supersede the testatrix’s will, which was in the process of being honoured.

Justice Myers was skeptical that s. 21.1(1) would allow for a draft will to be deemed valid, noting that the testatrix may not have had “a deliberate or fixed and final expression of intention as to the disposal of [her] property on death”.  Justice Myers added that a draft will is just that – a draft – which was open to change, even prior to its signing. 

Under s. 9, a Court may order that a will be produced, or require someone with knowledge of a will to be examined under oath in search of the will, regardless of whether a legal proceeding has been initiated.  It should be noted that s. 9 of the Estates Act came into effect before the updates to s. 21.1(1).

Justice Myers opined that allowing the applicant to access these documents under s. 9 could create a perverse incentive for people to use s. 9, and open the floodgates of people seeking of documents to be validated under s. 21.1(1).  Ultimately, Myers J. required the applicant to return at a later date with a more researched argument as well as input from the legal community as to the potential ramifications of allowing such a search for a draft will. 

Conclusion

Section 21.1(1) of the SLRA has already impacted the estates world.  It allows for a court to deem valid both: 1) wills that lack a signature and; 2) wills with signatures that were not properly witnessed. However, s. 21.1(1) does not allow for a court to infer or ‘read into’ a document the intention to revoke, revive or alter a will. Underscoring all these decisions is the Court’s intention to give effect to the fixed and final intention of the deceased. 

What is still unclear is whether an individual can seek out documents, like a draft will, to be deemed valid by the court under s. 21.1(1).  Finally, despite s. 21.1(1), it is still important for lawyers to ensure compliance with the formalities of the SLRA when drafting and executing a will.