Considering Wills Where No Strict Compliance with Execution Requirements: Part 1

June 7, 2011 Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , , 0 Comments

We have blogged and podcasted in the past on the formal requirements of Ontario’s Succession Law Reform Act, and the effect of non-compliance. In Ontario, there is no provision for “substantial compliance”, and a Will not executed in accordance with the strict requirements will not be accepted: see Sills v. Daley, [2002] O.J. No. 5318 (however, see also, Sisson v. Park Street Baptist Church, [1998] O.J. No. 2885).

Other provinces, such as Manitoba, New Brunswick and Nova Scotia, have provisions that give the court discretion to order that a writing is valid and fully effective as a will even though it was not executed in compliance with the relevant legislative requirements.

In Nova Scotia, the legislation provides:

“Where a court of competent jurisdiction is satisfied that a writing embodies

(a) the testamentary intentions of the deceased; or

(b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will,

the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.”

The application of this provision was discussed in the recent Nova Scotia decision of Robitaille v. Robitaille Estate, 2011 NSSC 203 (CanLII).

There, the testator met with her lawyer to discuss a change to the appointed executor under her will. The next day, the lawyer spoke to the testator by phone (recognizing her voice) to discuss making a change so as to add a clause imposing a protective trust for the bequest to her daughter similar to the clause that was in place for her son. Before the revised will could be discussed and executed, the testator fell ill and was hospitalized. Another daughter phoned and asked the lawyer to email the will to her so that it could be executed by the testator. 

The testator then signed the will, and died a few days later.

Unfortunately, the will was not signed by the witnesses in the presence of the testator, as required by Nova Scotia’s Wills Act.

What did the court do? Tune in tomorrow.

Paul E. Trudelle – Click here for more information on Paul Trudelle

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