Ceremonial Execution: Due Execution and Substantial Compliance

November 21, 2013 Hull & Hull LLP Wills Tags: 0 Comments

 In Ontario, wills must meet the formal requirements set out in sections 4 to 7 of the Succession Law Reform Act (the “SLRA”), or they are not valid.  The SLRA prescribes a strict formula for the execution of a valid attested will.  A holograph will may be valid only if it is wholly in the handwriting of the testator and signed by him or her at the bottom.  There are even rules about where on the document the testator’s signature must be located.  The rules are relaxed somewhat for persons in the Canadian Forces on active service and mariners at sea, but for most Canadians, a failure to adhere to the SLRA’s recipe exactly means that the document will fail as a Will. 

One reason for requiring strict compliance with the rules of due execution is to protect against fraud or forgery.  If two witnesses see the testator sign and subscribe their own signatures, the courts have good reason to believe that the Will is real.  Another reason is that requiring these formal steps brings a sense of ceremony to the execution of a Will that should alert the testator to the seriousness and finality of the act of execution.

The unfortunate side effect of Ontario’s strict compliance regime is that some Wills which actually reflect the true testamentary intentions of a deceased testator may be rejected at the probate stage for some technical defect.  The testator may die thinking his or her Will is valid, only to have the court refuse to recognize it because one witness failed to sign or because the witnesses were not together when the testator signed or acknowledged his or her signature. 

To avoid these arguably unjust results, most provinces in Canada have adopted “substantial compliance” provisions into their Wills legislation.  Under provisions of this kind, a Will which is technically deficient can still be admitted to probate if it can be demonstrated that it reflects the true testamentary intentions of the deceased testator. 

The most recent convert is the province of British Columbia.  When BC’s new Wills, Estates, and Succession Act comes into force in March of 2014, that province will become the newest substantial compliance jurisdiction in Canada. 

There have been some isolated attempts by the courts to introduce substantial compliance to the common law in Ontario (see for example, Sisson v. Park Street Baptist Church (1998), 24 E.T.R. (2d) 18, [1998] O.J. No. 2885).  However, subsequent decisions have made it clear that there is no doctrine of substantial compliance in this province.  For more information on this subject, see David M. Smith’s recent blog on the subject of holograph wills.

It is uncertain whether Ontario will follow suit and add a substantial compliance provision to its legislation in the future.  

Josh Eisen

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