Ontario could join other provinces in letting courts save invalid wills

Estate practitioners are applauding an Ontario government proposal to provide courts with the power to save wills that might otherwise be found invalid due to technical errors — a power that already exists in the majority of Canadian jurisdictions.

When a will is deemed invalid, estate property is distributed according to the intestacy rules found in a province’s estate act, rather than as the deceased may have intended.

In all provinces except Ontario and Newfoundland and Labrador, the courts have a mechanism to save an otherwise invalid will and declare it valid. The eight provinces operate under what’s known as a “substantial compliance” regime.

Court validation of a will “can cure injustices where clearly what the person wanted to do [with their estate] was known and was obvious,” said Keith Masterman, vice-president of tax, retirement and estate planning with CI Investments Inc. in Toronto.

Currently, Ontario operates as a “strict compliance” jurisdiction: a will must comply with required formalities to be considered valid. For example, a will must be signed by the testator in the presence of at least two witnesses, who also must sign the will. (There are separate requirements for holograph wills.) In general, courts in Ontario can’t validate a non-compliant will.

“Strict compliance has its one advantage: there’s certainty,” Masterman said. “There’s no question one way or another [of what is a valid will].”

Ontario’s proposed amendment would transform it into a substantial compliance province.

“A perfect case [for substantial compliance] would be where the signature of one witness is missing,” said Krystyne Rusek, an estate lawyer with Pallett Valo LLP in Mississauga, Ont. “So long as there is convincing evidence that both witnesses were present when the testator signed, and the failure to sign as a witness was an oversight, the court could and should validate the will.”

Suzana Popovic-Montag, managing partner with Hull & Hull LLP in Toronto, said that Ontario’s proposed change “allows the court to consider on a case-by-case basis whether something should be a valid will or not. It’s certainly welcome.”

A legislative change could create uncertainty as to which wills would be valid in Ontario, however.

Rusek said she believes the proposed change could lead to more litigation.

“Currently, because the formal requirements [to execute a valid will in Ontario] are clear and binding, it is ill-advised to attempt to probate a will that does not satisfy them,” Rusek argued. If the amendment is passed, cases will turn on evidence, including the “self-serving” evidence of involved parties. “The [ensuing] litigation will result in innumerable different variations of what is an ‘acceptable’ testamentary document,” Rusek said.

Rebecca Studin, an estate lawyer with de Vries Litigation LLP in Toronto, disagreed.

“I just think [court validation of wills] will be another avenue for litigation to be fought,” Studin said. “If [an interested party] isn’t satisfied with what they obtained under a will, they will find a way to litigate that.”

In February, Ontario’s attorney general introduced Bill 245, Accelerating Access to Justice Act, 2021, which included a number of estate law reforms. The bill has passed second reading and has been referred to committee.

Among those reforms, Bill 245 proposes to give the “Superior Court of Justice authority to, on application, make an order validating a document or writing that was not properly executed or made under the Act, if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased.”

A concerning issue for Rusek is judicial overreach — whether courts will use the power “to validate a document solely to permit a ‘just’ outcome in the eyes of the judge.”

“The formalities required are there to protect the wishes of the testator and should not be discarded lightly,” Rusek said.

As an example, she cited Hubschi Estate, a 2019 decision from B.C., which became a substantial compliance province in 2014.

In Hubschi Estate, a document was found on the deceased’s computer stating only, “Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.” While the document did not meet the requirements for a valid will, the Supreme Court of B.C. found it could be saved.

“It is difficult to see that this notation [in the document] reflects a final intention with respect to the distribution of the individual’s estate,” Rusek said.

But Masterman argued that the Hubschi Estate decision shows “how justice can be done through substantial compliance.”

If the court had found that the document was not a will, the deceased’s estate would have gone to his birth family, with whom he had no relationship, as per intestacy laws. However, by finding the document could be saved, the deceased’s estate went to his siblings from his foster family, as outlined in the document.

“It’s a great example of where the court simply asked [itself], ‘What is the clear intention of the individual?’” Masterman said.

Nevertheless, Masterman agreed that overreach is a key risk in moving to a substantial compliance regime. He cites a 2017 decision from Australia, Re Nichol, where an unsent text message found on a deceased man’s cellphone was accepted by the court as a valid will.

“The question is, where do you stop?” Masterman said.

Not all substantial compliance provisions are identical, Masterman added. In B.C., the court has the power to save a will if it is convinced that a record or document represents “the testamentary intentions of a deceased person.” Meanwhile, Alberta’s estate act states that there must be “clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will.”

In the 2015 Re Woods decision in Alberta, a woman contacted a law firm to begin her will and filled out a questionnaire as to her intentions. However, she died before the will could be prepared. An application was made to court to have her notes and the questionnaire recognized as her valid will. However, the Alberta court found that the documents could not be saved under its estate act.

“I’ll be interested to see what Ontario’s [estate act amendment] has” in terms of wording if the proposal is passed, Masterman says.

Even if Ontario becomes a substantial compliance province, formal will requirements will continue to apply.

“Practitioners will be as careful as ever when they draft wills and attend to the formalities of execution,” Studin said. “I don’t think it’s advisable, if the [amendment] is passed, to adopt a fast and loose approach to the solemnity of will execution.”

Said Popovic-Montag: “[Estate] lawyers will still be doing what they’re doing, and doing it to the best of their ability. When errors occur that weren’t expected, that’s when these kinds of substantial compliance provisions might be called upon.”