Earlier this week, I reviewed the role of Section 21.1 of the Succession Law Reform Act, RSO 1990, c S.26, in validating wills that have not been executed and/or witnessed in a manner entirely compliant with the formal requirements under the act. 

A decision rendered by the Ontario Superior Court of Justice earlier this week reviews some of the limitations of the use of will validation powers under the SLRA.  I have previously blogged about the exclusion of electronic wills from will validation in Ontario.  In the Estate of Harold Franklin Campbell, 2023 ONSCC 4315, the Court addressed another limitation. 

The deceased had left a formal will and two hand-written documents:

1. The 1996 Will, made before the deceased remarried,  which named the deceased’s children from his first marriage as estate trustees and beneficiaries;
2. The 2016 signed handwritten note, directing gifts of specific items to the deceased’s new wife; and
3. The 2017 signed handwritten note, setting out the deceased’s wishes regarding his remains.

The issue was whether the handwritten documents had the impact of reviving the 1996 Will, which had been automatically revoked by (now repealed) Section 16 of the SLRA, upon the deceased’s remarriage.  The position of the applicant was that Section 21.1 could be applied to order that the 2016 document and the 2017 document were valid revivals of the 1996 Will.  Justice Chang determined that both handwritten documents were valid holograph codicils to the 1996 Will, but declined to apply Section 21.1 in doing so: 

“The law is well settled that, when interpreting statutory law, the words of the section in issue must be read ‘in their entire context and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament’… Reading the words of s. 21.1(1) of the Succession Law Reform Act in this way, I find that it confers upon the court jurisdiction to deem as valid documents or writings that fail to strictly comply with the applicable requirements of that Act, but that nonetheless set out a deceased person’s testamentary intentions or intention to revoke, alter or revive her/his will.  Section 21.1(1) does not, as [the applicant] suggests, provide the court with license to read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence…[A] testator’s intention cannot be created out of whole cloth, which is what [the applicant] effectively suggests using s. 21.1(1) of the Succession Law Reform Act.

The 2016 and 2017 codicils were nevertheless considered to have had the impact of reviving the 1996 Will pursuant to Section 19 of the SLRA, as their terms were clearly intended to supplement the 1996 Will, which the deceased then believed and intended to remain in effect.

Thank you for reading and have a great weekend,

Nick Esterbauer