Under the common law, creating (or revoking) a will is a personal right which belongs to the testator – it cannot be transferred or given to another. As noted by Lord Simonds in Chichester Diocesan Fund v Simpson, [1944] AC 341, “[i]t is a cardinal rule, common to English and to Scots law, that a man may not delegate his testamentary power.”  

It is possible, however, to delegate the right to make a will for a testator by statute. That said, in most jurisdictions in Canada, such delegation is not permitted. In Ontario, for example, subsection 7(2) of the Substitute Decisions Act, 1992, SO 1992, c 30 (the “SDA”) forbids a continuing power of attorney from authorizing the attorney to make a will on the grantor’s behalf. Subsection 31(1) of the SDA also states that “[a] guardian of property has power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will” (emphasis added).

However, it appears that a new era may be dawning in Canada with respect to the delegation of the “testamentary power.” Earlier this year, New Brunswick became the first province in Canada to permit the delegation of the authority to create, alter or revoke a will. Under the Supported Decision-Making and Representation Act, SNB 2022, c 60, New Brunswick’s new legislative scheme for substitute decision-making, two types of substitute decision-makers may be authorized to create a will. 

Part 3 of the Act provides for the appointment of decision-making supporters, who may be authorized to assist supported persons with a variety of decisions, including all or some of their financial matters. With respect to wills, subsections 24(4)(a) and 21(4)(b) indicate that a supported decision-making order may expressly authorize the decision-making supporter to make, amend, or revoke the supported person’s will. However, given that subsections 24(2) and (3) indicate that a decision-making supporter is to make decisions with the supported person, rather than on their behalf, it appears that a decision-making supporter ought to work with a supported testator in order to create the testator’s will.  

Second, a “representative” can be appointed under Part 4 of the Act. Subsections 41(4)(a) and 38(4)(b) indicate that the representation order may expressly authorize a representative to make, amend or revoke a represented person’s will. Unlike a decision-making supporter, a representative may actually “make decisions and act on behalf of the represented person,” but only if the represented person lacks capacity: see subsections 41(2)(a) and (3). 

Regardless of whether a will is made by a decision-making supporter or a representative, the legislation requires that person to discuss the options available and the testator’s wishes and preferences before making a decision on the testator’s behalf, and to ensure, when possible, that decisions are guided by the testator’s wishes and preferences (see ss. 27(1)(b), (c) and 44(1)(b), (c)). 

If a supported decision-making order or a representation order does not explicitly address the power to make, amend, or revoke a will, then the testator’s will-making power will not be delegated unless the court grants another order. The legislation permits both supported decision-makers and representatives to apply to the court for directions with respect to supported decision-making orders and representation orders, and states that the court may authorize the making, amending or revoking of a will on behalf of a testator: see sections 33 and 50.

Previously, under the Infirm Persons Act, RSNB 1973, c I-8, the courts in New Brunswick also had the jurisdiction to make, amend or revoke a will on behalf of a “mentally incompetent person” under subsection 3(4). However, this legislation was repealed effective December 31, 2023, when the Supported Decision-Making and Representation Act came into force.

In light of this change to the law in New Brunswick, it will be interesting to see whether other provinces follow suit and update their legislation to permit testators’ “testamentary power” to be delegated to substitute decision-makers. 

While a power of attorney in Ontario cannot authorize an attorney to make a will on behalf of a donor, it does appear that an attorney can at least act as the donor’s agent and sign a new will on their behalf, as long as the donor still has capacity. On this point, subsection 4(2) of the Succession Law Reform Act, RSO 1990, c S.26 permits a will to be signed by some other person on behalf of a testator, as long as the will is signed in the testator’s presence and by their direction.

Thank you for reading, and have a great day!

Suzana.