While section 21.1 of the Succession Law Reform Act, RSO 1990, c.26 has now been in force for more than two years and is the subject of a growing body of case law, the kinds of instruments which may be validated as a will using this provision remain unclear. To quote Justice Myers in White v White, 2023 ONSC 7286, “[n]o one knows with any certainty yet whether there are any limits on the types of documents that might be recognized as wills or what limits may apply.”
One issue that is yet to be addressed in Ontario is whether only part of a document may be validated as a will using section 21.1. To date, the Superior Court of Justice has only used the will validation power to save non-compliant documents in their entirety.
In comparison, courts elsewhere in Canada have used this power to save only part of a will document. For example, in Saskatchewan, the court has used its dispensing power to validate an attachment to a formal will that included a list of additional bequests: see Gibb Estate (Re),2023 SKKB 34.
Similarly, case law from Alberta also affirms that the dispensing power can be used to save only part of a will document. In Meunier Estate, 2022 ABQB 83, the court saved only the first page of a non-compliant will since there was no clear and convincing evidence that the second page of the document “was intended to reflect [the deceased’s] testamentary intentions or to form part of his formal will.” The first page in this case contained some “typical elements of a will” – it distributed the deceased’s property, contained clear funeral directions, and had also been signed by the deceased and witnessed – whereas the second page, which had not been signed or initialed by the deceased, was “confusing, inconsistent, and incomplete.” In refusing to validate the second page, the court also noted that there was very little to link the second page of the document to the deceased and “nothing linking it to the first page.”
There is also interesting case law on point from British Columbia. Earlier this year, the Supreme Court used the dispensing power to validate only one clause of a draft will – the revocation clause: see Cooper Estate, 2024 BCSC 218. The deceased in this case was a lawyer who had executed a will in 1989 when he was married, but failed to update his estate plan after he and his wife divorced. Under the 1989 will, the entire estate was to be inherited by the children of the deceased’s ex-wife. In 2017, the deceased asked a colleague to draft a new will for him after he suffered a stroke, but the will was never finalized or executed.
In order to prove that the revocation clause in the draft will could be saved under section 58 of the Wills, Estates and Succession Act, SBC 2009, c 13, Justice Majawa held that the applicant had to satisfy the court on the balance of probabilities that a) the relevant clause in the 2017 draft will was authentic, and b) that when the draft will was created, the deceased had formed a fixed and final intention that he did not want the 1989 will to govern the distribution of his estate.
The revocation clause in Cooper could be validated because there was evidence that around the time that the draft will was created, the deceased expressly stated that the 1989 will did not reflect his wishes. There was also no evidence to indicate that the deceased changed his mind about revoking the 1989 will between the time that the draft will was created and when he died in 2022. Because the revocation clause in the draft will was validated, the deceased’s estate passed on intestacy rather than under the 1989 will.
If the Superior Court of Justice is asked to save only part of a non-compliant will document in the future, it will be interesting to see how the court handles this issue. While the case law discussed above indicates that the court could use section 21.1 to validate only part of a document, there are no guarantees. Not only are both the Succession Law Reform Act and section 21.1 unique compared to the legislation in place in Saskatchewan, Alberta, and British Columbia, but the application of the will validation power is an intensely fact-driven process, making it hard to predict whether case law from other jurisdictions will be followed in Ontario.
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