As of January 1, 2022, the SLRA was amended by the addition of section 21.1 (more on that here). This subsection provides the Court authority to, on application, make an order to validate a document or writing that was not properly executed under the SLRA. To do so, the Court must be satisfied that the document or writing sets out the testamentary intentions of the deceased.

Often referred to as “substantial compliance”, validation is not actually a question of how many of the formal requirements need to be complied with. Instead, Courts have tried to determine if a testamentary intention can be ascertained despite a lack of strict compliance with formalities. As the provision only took affect recently for deaths on or after January 1, 2022, its limits have yet to be determined.

In virtually every other province with a validating provision, the outcome has hinged on an assessment of whether the document accurately reflected the full and final testamentary intentions of the deceased based on the document itself and the circumstances in which it was created. 

Alberta’s Wills and Succession Act section 37 is worded very similarly to Ontario’s SLRA section 21.1 and two cases from the province may be helpful in predicting how the validating provision will be applied here. 

Meunier Estate identified four broad purposes of formal will requirements: cautionary, evidentiary, protective and promotion of legal consistency. These purposes continue to be relevant in assessing testamentary intentions. “Clear and convincing evidence of testamentary intentions requires proof on a balance of probabilities … The more a document departs from the requirements of formal validity, the harder it will be to prove the deceased person intended it to represent their testamentary intentions. … That said, the degree of departure from formal requirements is not definitive, and the circumstances and context of the document’s creation must also be considered”.

The Court in Oustouh Estate (Re) summarized some of the internal and external factors that have been used to establish whether a document sets out the deceased’s testamentary intentions:

• Whether the document contains a reference to being a will;
• Whether the document contains the “typical elements of a will”, such as revoking former wills and testamentary dispositions, appointment of a personal representative as well as their powers and compensation, paying debts, distributing property, and funeral instructions;
• Whether the document states that the testator has knowledge of and approves the contents;
• Whether the document is signed by the testator;
• Whether this signature was witnessed;
• Whether the witness understood what the testator was trying to accomplish and believes that the testator intended the document as a will;
• Whether the witness had the mental capacity to be a witness;
• Whether the witness was disqualified as a witness;
• Whether the witness and testator initialed the pages of the document;
• Whether the witness and testator signed and initialed the document in each other’s presence;
• The position taken by the witness on the naming of beneficiaries under the will;
• The length of time from the making of the will to the death of the testator;
• Whether any evidence points to the existence of any other will or testamentary disposition;
• Whether the will is comprehensive;
• Whether anything in the document reflects “any tentative or incomplete intention”;
• Whether the testator suffered from any language, comprehension, or similar defects; and
• Whether, if only one witness signs the will, there is an explanation for the lack of another witness.

While this jurisprudence may be helpful in predicting how Ontario courts will apply s. 21.1, it remains to be seen just how broad or narrow of an application our Courts will take in these highly contextual cases.

Ian Hull and Marie Kazmer