Since section 21.1 of the Succession Law Reform Act came into force in 2022, we have blogged about the court’s power to validate wills that do not comply with the requisite formalities of execution numerous times. However, section 21.1 is not the only provision in the SLRA that can be used to approve a will that was not properly witnessed – imperfect wills can also be saved using section 5. The difficulty with this provision is that it only applies to wills made by either:

• a member of the Canadian Forces placed on active service under the National Defence Act,
• a member of any other naval, land or air force while on active service, or
• a sailor at sea or in the course of a voyage.

Such wills are often referred to as privileged wills. In order to be valid, the testator must sign the will, or a person may sign it on the testator’s behalf in the testator’s presence – otherwise, no further formalities are required.

Privileged wills have been recognized for centuries. First, Roman law allowed the wills of soldiers and sailors to be made without adherence to rigid formalities. Subsequently, privileged wills were permitted in England through the Statute of Frauds, 1677, and then continued through the Wills Act, 1837: see the Alberta Law Reform Institute’s Report on The Creation of Wills.

In Canada, Ontario is not alone in continuing to recognize privileged wills. With the exception of Quebec and the Yukon, all other provinces and territories permit them.

An interesting question that has been grappled with by several law reform agencies in recent years is whether privileged wills should still be part of the law in Canada. Two agencies – the Manitoba Law Reform Commission and the British Columbia Law Reform Institute – have recommended repealing legislative provisions which permit privileged wills, whereas the Law Reform Institute of Nova Scotia and the Alberta Law Reform Institute have recommended retaining them. The Uniform Law Conference of Canada has also endorsed privileged wills through section 10 of the Uniform Wills Act.

Historically, privileged wills for military personnel and sailors made sense in light of their poor social and legal conditions. As noted by the Alberta Law Reform Institute, soldiers typically had relatively low levels of education and literacy and were often deployed abroad on short notice, where they may not have an opportunity to consult with a professional for advice about making or updating a will.

Given how succession laws have evolved in recent years, however, it can now be argued that privileged wills are no longer warranted. Like other Ontarians, military personnel and sailors can simply create holograph wills without witnesses under section 6 of the SLRA, as long as the will is handwritten and signed at its end by the testator.

If military personnel or sailors create wills that do not comply with the formalities of execution, such instruments may also be saved using the will validation power. In fact, this provision has a wider reach than section 5, given that the Superior Court of Justice may validate unsigned wills under section 21.1, as noted in David’s blog post, An Unsigned Will is Admitted to Probate in Ontario and Justice Myers’ decision last year in Kertesz v Kertesz, 2023 ONSC 7055. A privileged will, in comparison, can only be admitted to probate if it was signed by the testator or by a third party on their behalf.

It also appears that the privileged will exemption is rarely used in Canada today. Research conducted by the British Columbia Law Reform Institute before the Wills, Estates and Succession Act was enacted showed that privileged wills are rarely probated, particularly in provinces where holograph wills are also permitted.

However, there is one powerful argument to be made for retaining privileged wills. While non-compliant wills can be validated through section 21.1, the will validation power does not actually guarantee the validity of non-conforming wills. In comparison, the law governing privileged wills is more certain. In fact, a privileged will may be accepted as valid without the need for a court application, whereas a court application is necessary to validate an instrument through section 21.1 of the SLRA. As noted in Anne Armstrong’s text, Estate Administration: A Solicitor’s Reference Manual, a certificate of active service is considered prima facie evidence that the testator was on active service when the will was made.

Section 5 also has a wider reach than section 21.1 in one significant way – as per section 8(1) of the SLRA, minors who are sea men or are engaged in active service may create privileged wills. Otherwise, the will of a minor cannot be validated by the court, even under section 21.1, unless the person “is or has been married” or the will was made in contemplation of marriage. This extension of the will-making power is still salient, as 16-year-olds can enrol as officers with the Canadian Forces with the consent of a custodial parent or legal guardian, although section 34 of the National Defence Act also states that minors “may not be deployed by the Canadian Forces to a theatre of hostilities”, arguably undermining the need for minors to make a will.

For anyone interested in making a privileged will, it is also important to remember that section 5 does not afford this privilege to all members of the Canadian Forces at all times – this privilege is only available “to those who are on active service”. On the bright side, if military personnel create an imperfect will when they are not on active service, it may still be possible to validate it using section 21.1.

I hope you enjoy the rest of your day,

Suzana.