Tag: formal validity
Many people are generally aware that the preparation of a Will is a significant event which requires that certain formalities be complied with. In Ontario, the formal requirements for executing a valid Will are set out at sections 3 to 7 of the Succession Law Reform Act (the “SLRA”).
Formal Requirements of a (Non-Holograph) Will
The formal requirements set out in the SLRA for wills, aside from holograph wills and those of active service members, are:
- The will must be in writing;
- The will is signed at the end by either the testator OR by some other person in the presence of the testator and by the testator’s direction;
- The will is signed OR acknowledged by the testator in the presence of at least two attesting witnesses who are present at the same time; and
- At least two attesting witnesses sign/subscribe the will in the presence of the testator.
For most English speaking Ontarians, the formal requirements for executing a valid will pose little issue. They can read and review the document, sign it at the end in the presence of two people, and then have those two persons sign immediately after them. However, for some individuals, the formal requirements of a Will may pose difficulties. Today’s blog examines what types of issues may arise and how to address them.
For individuals who are unable to read or write, some may not be able to sign their name in the conventional sense. However, common law courts have accepted a wide variety of “marks” which are intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most testators will be able to execute a will without difficulty.
Those who Have Physical Difficulty Writing
For individuals who may experience physical difficulties in executing a Will, several solutions exist. As the Courts accept a variety of “marks,” it may be possible for those who find it difficult to fully sign their name to nonetheless adequately sign the will for the purpose of complying with the SLRA.
Alternatively, individuals may direct another person to sign the will for them, provided that the testator remains in their presence at that time. In certain jurisdictions, the person signing on behalf of the testator may also act as the attesting witness.
Formal Validity and Substantive Requirement of Knowledge and Approval of Will
While the provisions of the SLRA allow for some flexibility in how a testator “signs” a will, it is important to follow precautions in order to ensure that the substantial requirement of knowledge and approval are not later questioned. In situations where an individual is unable to read English or to sign documents, individuals may raise concerns about whether the testator knew of and approved the contents of the will purportedly being signed by them.
In such circumstances, where a will challenge is commenced, it is important to have evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.
Thanks for reading!
In Ontario, a Will has to be in writing and typically an original is required for probate to be granted. With the increase of the technological presence in the everyday life of a typical Canadian, the question remains, should electronic Wills be admitted to probate?
Clare E. Burns and Leandra Appugliesi wrote an interesting paper on this topic titled “There’s an App for that: E-Wills in Ontario” that argued for the development of a legislative scheme in Ontario that admits the possibility of electronic Wills.
In discussing this question, the experience of other jurisdictions was considered, including the United States and Australia.
In 2005, the State of Tennessee was the first American state to recognize the validity of a Will executed with an e-signature. In that particular case, the deceased prepared his Will on his computer and asked two of his neighbours to serve as witnesses. A computer-generated signature was affixed to the Will. Almost ten years later, in 2013, the State of Ohio admitted to probate a Will that was written in the deceased’s own handwriting and signed by him, on a tablet computer.
It appears that electronic Wills are most probably valid in Florida, Texas and California and consistent with existing legislation, though the legislation does not specifically contemplate electronic Wills. The State of Nevada, on the other hand, has specifically enacted legislation which expressly allows for the validity of electronic Wills.
Australia, in comparison to the United States, has managed the question of electronic Wills by making use of the “substantial compliance” legislation that exists in each state, which gives the state courts the authority to dispense with the formal requirements for the execution of the Will. In comparison, the legislation in Ontario is one of “strict compliance” such that the formalities of a Will are required before a Certificate of Appointment is granted.
It appears that in Ontario, though a Court could theoretically admit an electronic Will (i.e. not an original copy) to probate, the formalities in accordance with the Succession Law Reform Act must be met, in any event. As a result, an electronic Will that does not meet any one of the formalities will almost certainly not be admitted to probate.
As various electronic gadgets are now being used more and more, Canadians are also using them to make testamentary documents. In keeping with the realities of contemporary life, it may be that legislative reform is needed.
In discussing the possibility of legislative reform, Ms. Burns and Ms. Appugliesi, also addressed the importance of various policy considerations. In doing so, they addressed the John J. Langbein analysis, which set out four main purposes to the formalities requirements in any Wills legislation:
- Evidentiary: the writing, signature and attestation requirements serve as evidence of testamentary intent in a reliable and permanent form;
- Channeling: the writing, signature and attestation requirements ease the administrative burden on the court system by setting out a uniform checklist of what is required before probate can be granted;
- Cautionary: the formalities are designed to impress the seriousness of the testamentary act upon the testator so as to ensure that he or she has fully thought through the result of executing the Will; and
- Protective: the formalities are designed to reduce the opportunity for fraud and undue influence by involving witnesses in the process.
As litigators, the “evidentiary” and the “protective” purposes are particularly important, as we often consider questions of testamentary intent, undue influence and fraud (albeit more rarely), amongst other things.
From that perspective, any legislative amendments to be made must address the various policy considerations and the implications of any such amendments on the legal system in Ontario.
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
NASA revealed exciting news earlier this week when they announced the discovery of liquid water flowing on the surface of Mars. The presence of water is an encouraging find. It boosts the prospects of discovering life on our nearest neighbour, and it raises questions about whether the planet could someday host human visitors.
The goal of sending people to the Martian surface now seems more attainable than ever. Talk of sending astronauts to Mars is likely to accelerate over the coming months. With people travelling to and someday settling on the red planet, a whole host of legal issues are likely to arise about how people will live on Mars, and some day, how we will deal with death in space.
The problem of applying testamentary law in space is a novel one. Perhaps the closest historical analog is the example of the explorers who set sail centuries ago in search of strange, new places across the seas. One of the legal developments that arose was the exception for privileged wills. Sailors at sea were allowed to make wills without them being subject to the same formal requirements that governed other wills.
Today, section 5 of Ontario’s Succession Law Reform Act addresses the formal validity of wills made by “a sailor when at sea or in the course of a voyage”. The section provides for a relaxation of the usual requirements for a will to be formally valid, including the requirement for two witnesses in the case of an attested will and the requirement that the will be wholly in the handwriting of the testator in the case of a holograph will. It provides that a sailor at sea can make a will by a writing, signed by the testator or by some other person in his or her presence and by his or her direction, without any other formalities. The section also applies to members of the Canadian Forces on active service and members of any other naval, land or air force while on active service.
There are no cases testing whether this provision or analogous provisions in other jurisdictions (on Earth) would apply to relax the formal requirements for a will where it is made during a space flight or while residing on Mars. It’s possible that astronauts in flight could be considered to be analogous to sailors at sea. It’s also possible that NASA astronauts would be members of a military force on active service, and accordingly gain access to the use of privileged wills.
It seems that it will be still be some time before we will need to consider the problems associated with living on Mars, and hopefully much longer before issues associated with death on Mars need to be sorted out. Perhaps need will spur new and unforeseen innovations in our legal system, just as naval exploration once did.
Mars is probably a forced heirship planet, anyway.
The issue of how strictly a testator must comply with the formal rules for validly executing a will is one that has encouraged legislative change across the country in recent decades. If the standard is too high, the result will be the frustration of the testamentary intentions of people who died thinking that they had valid wills when in fact they were invalid. If the standard is too low, uncertainty as to what qualifies as a valid will and what doesn’t may lead to an increase in litigation.
Ontario maintains a strict compliance regime, requiring that the statutory requirements for valid execution of a will are carefully adhered to and denying courts the authority to validate a document that fails to meet them. Most other provinces and territories have given their courts at least some authority to cure deficiencies in the execution of a will, provided that the document is found to represent the testamentary intentions of the deceased.
While the debate continues in Ontario, a recent Alberta case may serve to assuage some of the concern that relaxing the strict requirements for execution will lead to the opening of the floodgates.
In Re Woods Estate, the Court of Queen’s Bench considered an application under Alberta’s Wills and Succession Act for a declaration that certain documents were valid as a will. The deceased, having been advised that she had approximately a year and a half to live, asked one of her sisters to help her retain a lawyer to prepare a will. In anticipation of the meeting, she took some notes on a pad of paper. A lawyer later attended at her home and completed a questionnaire used by her firm to take information for a will. The questionnaire included information about the testator’s choice of executor, the assets, her wishes with respect to her remains, and how she wanted the residue of her estate to be divided. The lawyer was going to contact the intended executor (an institution) to confirm their willingness to act, and arranged to return several days later to have the will executed. Unfortunately, the deceased died early the following morning. The Court had to consider whether to grant probate of the deceased’s notes and/or the questionnaire as representing her last will.
Turning to Alberta’s statute, the Court considered section 14 of the Act which provides that to be valid, a will must be in writing and “contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will”. There are further sections (15, 16, and 17) that add requirements for a formal will, holograph will, or a military will. Section 37 of Alberta’s Act allows the Court to relieve a will from the strict requirements under sections 15, 16, and 17, but not 14. Accordingly, because the notes and the questionnaire were not signed by the deceased with the intention that they have effect as her will, the Court was unable to apply section 37. The Court also considered whether the Act‘s rectification provisions could be used and held that they could not because they required that the omission of a signature be due to pure mistake or inadvertence. Here, it was never intended by the deceased that the notes or questionnaire would become a will and so it could not be said that the failure to sign was inadvertent.
Sadly, the presiding judge noted that she was satisfied that the questionnaire accurately reflected the testamentary intentions of the deceased and that she had no doubt the testator would have executed a will on those terms, but that Alberta statute nevertheless did not authorize the Court to validate the will.
As noted in the case, Alberta’s statute takes a “middle position” between strict compliance jurisdictions like Ontario and substantial compliance jurisdictions, where the Court has broader powers to grant probate to a document that is found to represent the testamentary intentions of the deceased notwithstanding the lack of a signature.
It seems that even in provinces where there has been some relaxation of the formal requirements for the valid execution of a will, there may still be cases where a document that is found to represent the testamentary intentions of the deceased will not be admitted to probate. Alberta’s experience demonstrates that there may be a range of legislative solutions to the formal validity issue, each with its own advantages and disadvantages.
Whether Ontario will move away from strict compliance in the future remains to be seen.