It is well known that the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) recognizes both formally executed wills and handwritten holograph wills. Since 2022, section 21.1 has also empowered the court to validate non-compliant documents as wills, and the limits of that curative jurisdiction remain a hotly contested topic in the courts (to learn more about how Ontario courts are treating section 21.1, see our prior blog posts on applications to validate draft wills, electronic wills, and handwritten, unsigned notes).
Less frequently discussed, however, is a fourth category recognized under the SLRA: the “privileged” will. The privileged will is the narrowest available and least commonly encountered execution regime, making case law scarce. This post considers how privileged wills compare to the other three regimes recognized under the SLRA.
The Requirements of Privileged Wills
Section 5 of the SLRA governs privileged wills. It creates the most permissive execution standard for a will in Ontario, but only for a tightly defined class of testators. Importantly, section 5 applies only to members of the Canadian Armed Forces on active service, members of other armed forces in similar circumstances, and certain sailors while at sea or on a voyage. The purpose of the privileged will is to accommodate the realities of military service in conditions where compliance with ordinary formalities may be impracticable.
Within this class, the formal requirements of execution are minimal. A privileged will need only be signed by the testator, or by another person in the testator’s presence and at their direction. Unlike a formal will, no witnesses are required. Unlike a holograph will, the document need not be in the testator’s handwriting – it may be typed or transcribed by another. The usual minimum age requirement of eighteen also does not apply to privileged wills, pursuant to section 8 of the SLRA.
These features distinguish privileged wills sharply from other will-making regimes under the SLRA. Formal wills prioritize evidentiary certainty through strict compliance requirements, including execution in the presence of two witnesses. Holograph wills relax those requirements but make up for it by requiring that the will be entirely in the testator’s handwriting. Section 21.1 introduces flexibility in a different way, allowing courts to validate non-compliant documents as wills where satisfied that they reflect the deceased’s fixed and final testamentary intention.
Privileged wills also differ from section 21.1 wills in an important respect. A privileged will is valid upon execution, and no application is required to establish its validity. By contrast, section 21.1 operates only after death and requires a court order, with the propounder bearing the burden of establishing authenticity and testamentary intention at a formal hearing. In that sense, section 5 operates prospectively, while section 21.1 operates retrospectively.
As a practical matter, unlike a section 21.1 will, a privileged will may be submitted through the ordinary probate process when applying for a Certificate of Appointment of Estate Trustee with a Will. However, additional evidentiary requirements apply. Under subsections 5(2) and (3) of the SLRA, the applicant must establish that the testator met the statutory criteria at the relevant time, typically through evidence such as a certificate of active service, posting orders, deployment records, or vessel logs. Absent such evidence, the protections of section 5 will not be engaged.
Takeaways
The rationale for privileged wills is both historical and practical. For centuries, it has allowed soldiers and sailors to make wills without strict formalities. The policies underlying a privileged will reflects the understanding that individuals in active service may lack access to legal advice and the ability to comply with ordinary execution requirements – and that, at times, such members of active service have been below the legal age of majority.
Within the modern statutory framework of the SLRA, privileged wills illustrate how different execution regimes serve distinct purposes. Formal wills emphasize certainty and reliability; holograph wills accommodate testators acting without professional assistance; privileged wills respond to the constraints of active service; and section 21.1 allows courts to give effect to testamentary intent despite technical deficiencies. Together, these regimes reflect a deliberate balance between formality and flexibility in Ontario succession law.
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