While electronic wills are not currently permitted in Ontario, it appears that it may be possible to probate an electronic will in this province as long as that will is valid elsewhere.
Conflict of Laws Under the SLRA
Subsection 37(1) of the Succession Law Reform Act, RSO 1990, c S.26 provides:
37(1) As regards the manner and formalities of making a will of an interest in movables or in land, a will is valid and admissible to probate if at the time of its making it complied with the internal law of the place where:
- the will was made;
- the testator was then domiciled;
- the testator then had his or her habitual residence …
While this provision has not yet been interpreted by the Superior Court of Justice, it appears that subsection 37(1) opens the door so that an electronic will could be recognized as valid in Ontario. However, in order to utilize this provision, the electronic will would have to comply with the manner and formalities for making a will that were in force either a) where the will was made, b) where the testator was domiciled when the will was made, or c) where the testator had their habitual residence. For example, if a testator was residing temporarily in British Columbia, where electronic wills are valid under the Wills, Estates and Succession Act, SBC 2009, c 13, and made an electronic will, it appears that the electronic will could be recognized as valid in Ontario so long as it complied with the manner and formalities applicable in British Columbia.
If, however, the testator was domiciled in Ontario when the electronic will was made, or had a habitual residence in Ontario, it appears that subsection 37(1) of the SLRA would not apply: see Anne Armstrong’s loose-leaf text, Estate Administration: A Solicitor’s Reference Manual.
Resealing a Will From Outside Ontario
Another way that an electronic will could potentially be probated in Ontario is through resealing. Section 52 of the Estates Act, RSO 1990, c E.21 permits the court to reseal a grant of probate obtained in another province or territory in Canada so that it is of force and effect in Ontario, as if the grant had originally been issued by an Ontario court.
While the language in section 52 is prescriptive, stating that the document submitted for resealing “shall, under the direction of the judge, be sealed with the seal of the Superior Court of Justice”, the law is not clear as to whether the court has discretion to decline an application to reseal a grant in Ontario. If the court does have discretion over resealing and determines that a will can only be resealed if it could be recognized as valid under the SLRA, specifically subsection 37(1), an application to reseal an electronic will could potentially be declined.
On a related point, it would not be possible to have an electronic will that was probated in another jurisdiction validated by the court in Ontario using section 21.1 of the SLRA in order to reseal the grant of probate, since subsection 21.1(2) expressly indicates that the court cannot validate electronic wills.
If, however, it is possible to reseal a grant of probate that was issued for an electronic will, the court may require further documents to be filed. The procedure applicable to resealing, articulated in rule 74.08 of the Rules of Civil Procedure, RRO 1990, Reg 194, permits the court to require “additional or other material” to accompany the application.
The registrar could also refer an application to reseal a grant of probate for an electronic will to a judge for determination. Since a copy of the will that is the subject of the resealing application must be submitted under rule 74.08, and it is unclear what format a copy of an electronic will would take, it seems plausible that an application to reseal a will could be directed to a judge on this basis alone.
Law Has Not Yet Been Applied to Electronic Wills
Since the courts have not yet addressed whether or not a grant of probate for an electronic will may be resealed, or whether an electronic will may be submitted to probate as long as section 37(1) of the SLRA is satisfied, it is impossible to know with certainty at this time whether an electronic will which is valid in another jurisdiction could be probated in Ontario. However, it certainly appears that the door is open so that an electronic will could be probated in Ontario, so long as that will is valid elsewhere.
Thank you for reading, and have a great day!
Suzana.