As our regular readers already know, at the beginning of last year, a will-validation provision was added to the Succession Law Reform Act, RSO 1990, c S.26, to permit the validation of wills “not properly executed or made”, but which set out “the testamentary intentions of a deceased” in Ontario.
My partner, David Morgan Smith, has previously covered two early cases applying Section 21.1 of the Succession Law Reform Act to validate wills: one in which the document was neither signed by the testator nor witnessed, and one in which the document was signed by the testator but not signed by any witnesses. Historically, as Ontario was a “strict-compliance” jurisdiction, neither document would have been considered a will; however, both documents were declared valid this year under Section 21.1.
A recent decision of Justice Meyers provides another example of how Section 21.1 can be used to grant relief in circumstances where a will is not properly signed or witnessed as a result of human error, inadvertence, or misunderstanding regarding formal execution and witnessing requirements. In Vojska v Ostrowski, 2023 ONSC 3894, a couple had obtained a lawyer’s assistance in the preparation and execution of wills and powers of attorney (six documents total). During the execution meeting, the lawyer inadvertently missed signing one of the wills as one of the two witnesses. The missing signature was discovered only after the death of the spouse whose will was not properly signed by one of its witnesses. On an application to the Court, the will was validated.
The early case law provides some comfort that Section 21.1 can and, in at least some cases, should be applied to validate documents. As Justice Meyers opined in Vojska v Ostrowski regarding the facts of that matter, “It is hard to imagine a more textbook example of a case for which the new power was intended.” It will be interesting, however, to see how else will-validation might be applied in the coming months and years.
Thank you for reading.
Nick Esterbauer