When Ontario amended its will validation legislation in January 2022, a crucial question emerged: How much flexibility would the courts exercise in interpreting and applying this new standard?
Previous discussions have examined how Ontario courts have approached section 21.1 of the Succession Law Reform Act (SLRA). For those interested, examples of relevant case analyses can be found here, here, here, and here.
As a helpful reminder, the majority of Canadian provinces have enacted legislation that allows the Court to validate a will as if it complied with statutory requirements, provided the Court is convinced that the document genuinely reflects the deceased’s testamentary intentions. Notably, Newfoundland and Labrador and the Northwest Territories are the only jurisdictions without substantial compliance legislation.[1]
Today, we turn our attention to a decision from the Nova Scotia Supreme Court, titled the Estate of Victor Sweeney. In this case, an executor sought an order declaring that a will with hand-printed amendments should be recognized as valid under section 8A of the Nova Scotia Wills Act, the province’s Substantial Compliance provision.
The deceased had left a properly executed typewritten will dated July 7, 1999, with significant portions crossed out and handprinted amendments made in pen. These changes, among other things, appointed his brother as the new executor. The brother subsequently applied for an order declaring the will, with the handwritten changes, as a valid section 8A will.
The court considered several factors, commonly referred to as the ‘Peters Factors’. While not exhaustive, these factors frequently appear in cases where courts evaluate the validity of such documents and the deceased fixed and final testamentary intentions:
➢ What is the degree of the formality of the language in the document?
➢ Is it dated?
➢ Is it signed?
➢ Has it been sealed?
➢ Was it delivered to a person, a specific person, with or without instructions as to what to do with it?
➢ Were there are any statements made by the testator, either at the time of delivery, or in the document itself that speak to the anticipation of death; that the document was intended to reflect a disposition after death?
➢ Is there any indicia of when it was expected that the document would read?
➢ The certainty of the bequests set out in the document.
➢ Whether there are reasons offered for gifting as set out in the document.
➢ Whether there is a reference to an existing Will that might tie it back to a Will.
➢ How permanent was the document intended to be – was it written in ink, or in pencil? i.e., Was this just a penciled thought for erasing later or not?
➢ Whether the document was on a form or is it entirely, as in these notes, in the handwriting of the testatrix.
The court found that the typewritten 1999 will, which had been modified, was initially prepared by a lawyer and utilized formal legalistic language. The amended version maintained this formal language, only altering the executor, beneficiaries, and the distribution of the estate’s residue. Even pronouns were adjusted to reflect the change in the executor’s gender.
However, the document was not dated, nor did it bear any additional signatures or initials attesting to the changes—factors that typically argue against finding a fixed and final intention. Furthermore, no one witnessed the testator making these amendments, nor did he instruct anyone else to do so on his behalf, making authentication a critical issue. The court relied on the expertise of a handwriting analyst to provide an independent and unbiased opinion, ultimately establishing that the handwritten changes were, more likely than not, made by the deceased.
The court ultimately concluded that that the document in question does represent the deceased’s fixed and final expression of intention as to the disposal of his assets upon death, even though he did not make it to a lawyer’s office to have another will reflecting those intentions prepared and executed.
Thanks for reading and have a great day!
[1] Suzana Popovic-Montag “A Primer on Substantial Compliance for Wills” The Toronto Law Journal.