Substantial Compliance and the Dalla Lana Decision

October 18, 2021 Fred Tonelli Uncategorized Tags: , 0 Comments

I previously wrote about the upcoming changes to the Succession Law Reform Act, introducing a substantial compliance regime to the law of will drafting in Ontario. As of January 1, 2022, the new Section 21.1 of the SLRA will allow for a broader interpretation of the validity of wills drafted by a testator, if they are otherwise improperly executed, but sufficiently demonstrate the “testamentary intentions of a deceased.”

The result of this change in legislation could be the admission of diary entries or even loose-leaf documents as valid testamentary documents. I could even imagine a future where a Word document saved on a testator’s laptop or cloud server could qualify as a valid will, if no better document could be found.

The February 2020 Dalla Lana decision in Alberta is illustrative. Alberta already has a substantial compliance regime – as do many other provinces – and cases such as this could be relevant to resolving disputes in Ontario, after January 1, 2022.

In Dalla Lana, the deceased wrote changes to his previous will on two sticky notes, only four days before he died. He had previously executed a formal will in 1997, but his sticky notes of March 2018 were deemed to be not only valid changes to his will, but a complete and valid rewriting of his will.

The factors considered by the Judge in his decision included:

1)    The testator was old enough (over 17) to make a will;

2)    The testator had testamentary capacity;

3)    The holograph will was “in writing”;

4)    The holograph will featured his signature;

5)    His signature indicated his “intention to give effect to the writing in the document as the testator’s will.”

It will be interesting to see if similar cases soon appear in Ontario, as substantial compliance takes effect in the New Year.

Thank you for reading!

Fred Tonelli

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