Since the Succession Law Reform Act was updated to include the will validation power in section 21.1, the Superior Court of Justice has used this power to validate a variety of non-compliant testamentary documents. In Groskopf v Rogers et al, 2023 ONSC 5312, for example, the court saved an undated, unwitnessed, fill-in-the-blank style document. The court has also saved a non-compliant codicil (see Salmon v Rombough, 2024 ONSC 1186), and a will document that was not even signed by the deceased (see Kertesz v Kertesz, 2023 ONSC 7055).

However, as of yet, the Superior Court of Justice has not exercised the will validation power to save a will modified by non-compliant alterations. This is possible – in addition to giving the court the power to validate a non-compliant document or writing as a will, subsection 21.1(1) can be used to validate a non-compliant document that sets out the deceased’s intention to alter their will. The court may validate alterations made to the deceased’s will by either the deceased, or, depending on the circumstances, by a third party.

While the criteria that must be met in order to validate a will altered by a third party has not yet been addressed in Ontario, there is case law on point elsewhere in Canada. In fact, the Court of King’s Bench of Manitoba was recently asked to validate a will that had been modified by the deceased’s wife. In Yaremchuk, et al. v. Yaremchuk, 2025 MBKB 48, the deceased had made a will in 2000 with the assistance of counsel that complied with all of the formalities of execution. The deceased’s wife then made handwritten changes to the will in 2020. The deceased did not initial her changes to the will; however, the court accepted that he did re-sign the final signatory page of the will, which had been re-dated in the wife’s handwriting. It was unclear from the altered will, however, whether the deceased had signed the will before or after the wife had altered the document, and because the wife predeceased her husband, she could not give evidence regarding when the altered will had been signed. The deceased’s new signature on the altered will was also unwitnessed, meaning that no other witnesses could give evidence as to whether the will had been altered before it was re-signed.

It was also unclear on the face of the altered will whether it had been changed at the testator’s direction. The will had been altered to change the distribution of the estate, disinheriting the deceased’s granddaughter and instead leaving the entire estate to the deceased’s surviving son and grandson. The will was also updated to name the son and grandson as the alternate executors of the estate.

Like the will validation power in the SLRA, section 23 of Manitoba’s Wills Act allows the court to validate a document which alters the deceased’s will so long as the court is satisfied that the document embodies the deceased’s intent, either based on the contents of the document itself or through extrinsic evidence. Whatever evidence is used to meet the burden of proof must be “substantial, complete and clear” in terms of the deceased’s testamentary intentions, as held by the Manitoba Court of Appeal in George v Daily, 1997 CanLII 17825.

When faced with a document modified by someone other than the deceased, however, there are further requirements that must be satisfied in order to validate that document. Again, citing George v Daily, the court held as follows in Yaremchuk:

“The concerns regarding discerning testamentary intent is [sic] heightened when the purported document is created by a third party. A third-party document would have to be one that had been made at the request of the deceased, or with their knowledge and, in any event, with their awareness that the document recorded the deliberate and final expression of their wishes as to the disposition of their property on death …”

Notwithstanding these heightened concerns, the application to validate the will altered by the deceased’s wife was ultimately granted in Yaremchuk. The application ended up turning on extrinsic evidence given by two non-beneficiaries regarding conversations that they each had with the deceased before he passed away. One of the non-beneficiaries swore that over the last few years of his life, the deceased had talked about his intent to leave everything to the son and grandson named as beneficiaries in the altered will. The other non-beneficiary affirmed that the deceased told him that he had changed his will to exclude his granddaughter. Without this evidence, the court noted that there would have been greater concerns regarding the altered will and whether it reflected the deceased’s testamentary intent.

While evidence of statements made by a deceased person regarding their intent are presumptively inadmissible due to the hearsay rule, the court could consider evidence of the conversations that the non-beneficiaries had with the deceased in Yaremchuk under the “state of mind” exception. Utterances made by a deceased person “as to a contemporaneous intention or state of mind to prove the declarant’s state of mind” are admissible under this exception, but they are not admissible “for the truth of any underlying factual assertions.”

The court’s decision in Yaremchuk demonstrates that it is possible to validate a will revised through non-compliant alterations, even if those alterations were made by a third party, such as the deceased’s spouse. However, to validate such an instrument, it will be necessary to meet additional requirements – either adducing proof that the changes were made at the deceased’s request or with their awareness – in addition to establishing that the document reflects the deceased’s testamentary intent.

Thank you for reading and have a wonderful day!

Suzana.