Amendments to Alberta’s succession legislation took effect in 2012 to expand the authority of the courts to order that a will is valid, notwithstanding its failure to comply with the formal requirements otherwise imposed under the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”). Specifically, section 37 of the Act reads as follows:
Court may validate non-compliant will
37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with section 15, 16 or 17, if the Court is satisfied on 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 or a revocation of his or her will.
Section 39(2) of the Act addresses the issue of the rectification of a will that has not been signed. If a court is convinced by “clear and compelling evidence” that the will was not signed as a result of pure mistake or inadvertence and the testator intended to give effect to the document as his or her last will, the court may add a signature to rectify the will.
The recent decision of Edmunds Estate, 2017 ABQB 754, provides clarification regarding the limits of the court’s ability to validate an unsigned will. In that case, a paralegal had received instructions from the deceased and prepared a will that reflected her instructions, but the new will was never signed by the deceased before she died. Justice C.M. Jones of the Alberta Court of Queen’s Bench found that the amended Act did not provide the Court with the authority to validate an unsigned will in the absence of clear and convincing evidence that the deceased had intended to sign the document and/or that she had failed to do so by inadvertence or mistake. The deceased could not have been said to have failed to sign the document by mistake, as she died before making arrangements to execute the will, and Justice Jones found that the evidence that the draft will was intended to be her last valid will fell short of what was required by the legislation.
In Ontario, the doctrine of strict compliance applies. Unless its defects can be cured by way of interpretation or rectification (the scope of which remedy remains limited), a will that does not comply with the formal requirements of the Succession Law Reform Act, RSO 1990, c S.26, will not be treated as valid and cannot be admitted to probate.
With several other provinces recently adding what Justice Jones refers to as “dispensing clauses” into their respective succession legislation, it will be interesting to see whether Ontario follows suit, opening the door to substantial compliance, in time.
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