Is Substantial Compliance in Ontario’s Future?
On Thursday August 6, 2020 there was a town hall discussion with the Province of Ontario Attorney General, Doug Downey. Part of his virtual discussion with members of the bar included the topic of allowing courts in Ontario greater latitude in validating or rectifying an improperly prepared will in Ontario.
Currently, in Ontario, a person making a will is required to meet all of the legislated formalities relating to the making of a will, known as “strict compliance”. If there is an error in complying with the requirements of the legislation, then the will is not valid. At present, the law in Ontario does not give a judge options to correct the error, even if the will was entirely correct otherwise, known as “substantial compliance”.
As the entire country is now attempting to make appropriate changes necessitated by the coronavirus pandemic emergency it is useful to take a look at what other provinces have done and are proposing to do.
In British Columbia, Section 58 (2) of Wills Estates and Succession Act provides the power for the court to make corrections where: On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents (a) the testamentary intentions of a deceased person, (b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or (c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
Further in Section 58 (3) of the Wills Estates and Succession Act: Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made (a) as the will or part of the will of the deceased person, (b) as a revocation, alteration or revival of a will of the deceased person, or (c) as the testamentary intention of the deceased person.
Is it time for Ontario to consider making the change from a “strict compliance” to a “substantial compliance” regime for wills legislation? On Thursday August 6, 2020 the Attorney General of Ontario, Doug Downey, was part of a virtual town hall discussion on the merits of such possible changes.
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