Tag: substantial compliance

18 Oct

Substantial Compliance and the Dalla Lana Decision

Fred Tonelli Uncategorized Tags: , 0 Comments

I previously wrote about the upcoming changes to the Succession Law Reform Act, introducing a substantial compliance regime to the law of will drafting in Ontario. As of January 1, 2022, the new Section 21.1 of the SLRA will allow for a broader interpretation of the validity of wills drafted by a testator, if they are otherwise improperly executed, but sufficiently demonstrate the “testamentary intentions of a deceased.”

The result of this change in legislation could be the admission of diary entries or even loose-leaf documents as valid testamentary documents. I could even imagine a future where a Word document saved on a testator’s laptop or cloud server could qualify as a valid will, if no better document could be found.

The February 2020 Dalla Lana decision in Alberta is illustrative. Alberta already has a substantial compliance regime – as do many other provinces – and cases such as this could be relevant to resolving disputes in Ontario, after January 1, 2022.

In Dalla Lana, the deceased wrote changes to his previous will on two sticky notes, only four days before he died. He had previously executed a formal will in 1997, but his sticky notes of March 2018 were deemed to be not only valid changes to his will, but a complete and valid rewriting of his will.

The factors considered by the Judge in his decision included:

1)    The testator was old enough (over 17) to make a will;

2)    The testator had testamentary capacity;

3)    The holograph will was “in writing”;

4)    The holograph will featured his signature;

5)    His signature indicated his “intention to give effect to the writing in the document as the testator’s will.”

It will be interesting to see if similar cases soon appear in Ontario, as substantial compliance takes effect in the New Year.

Thank you for reading!

Fred Tonelli

28 Jun

Electronic Signatures Still not an Option for Wills in Ontario

Nick Esterbauer Estate Litigation, Estate Planning, Wills Tags: , , , , , , 0 Comments

Our readers will already know about the recent approval of legislation providing for will validation in Ontario under Bill 245, the Accelerating Access to Justice Act, 2021.  The act received Royal Assent in April 2021.  The changes under Schedule 9, which addresses amendments of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”), come into effect on January 1, 2022 (other than the update to virtual will witnessing in counterpart, which has already been made permanent under the revised Section 4 of the SLRA).

As of January 1, 2022, a new Section 21.1 of the SLRA will read as follows:

Court-ordered validity

(1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.

Transition

(3)Subsection (1) applies if the deceased died on or after the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.

We have seen Section 21.1 referred to as both a will-validation provision and as a “substantial compliance” provision.  In fact, Section 21.1 does not specify that substantial compliance with the formal requirements for a valid will under the SLRA is required and it may, accordingly be more accurately referred to as a will-validation provision.  Either way, this is a significant change to the law of validity of wills in Ontario and our province, as of January 1, 2022, will no longer be a strict compliance jurisdiction where some documents clearly intended to function as a valid will are rejected and deemed ineffective for technical reasons.

Notably, the legislation carves out the use of electronic signatures.  Some estate practitioners had been hopeful that electronic signatures would be accepted under the proposed estate legislative reform, given the recent increased acceptance of electronic signatures in the swearing/commissioning of affidavits and other legal documents and options available to verify their authenticity.  Section 31 of the Electronic Commerce Act, 2000, SO 2000, c 17, excludes the application of that act to wills, codicils, testamentary trusts, and powers of attorney.

Accordingly, it appears that a will signed by the testator or witnesses using electronic means cannot be validated by the Court, even after the new Section 21.1 is introduced to the SLRA.  For now (including after January 1 of next year), all wills still require actual, “wet” signatures in order to be valid.  Furthermore, even if a will may be validated by the Court under Section 21.1, the uncertainty, delay, and expense relating to applying for court-ordered validation of a will may still be best avoided by seeking an experienced estate planning lawyer’s assistance in the preparation of a Last Will and Testament.

Thank you for reading.

Nick Esterbauer

13 Aug

An Electronic Will is Good in British Columbia!

James Jacuta Wills Tags: , , , , 0 Comments

In Hubschi Estate 2019 BCSC 2040, it was found that the notation left on a computer by the deceased was sufficient to be ordered as his valid electronic will.

Mr. Justice Armstrong reviews the facts and the law in a sixteen-page decision which includes the following paragraphs edited for brevity:

On Mr. Hubschi’s death, his family did not find a will meeting the requirements of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA). His family did, however, find a document/record on a computer in his home indicating as follows:

“Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor”.

The document does not meet the formal requirements of the Wills Estates and Succession Act (WESA). The issue on this application is whether the document can be cured, pursuant to s. 58 of WESA. If the document can be cured, Mr. Hubschi’s significant assets will be distributed to the foster siblings he grew up with in accordance with the intentions set out in the document. If the document cannot be cured, Mr. Hubschi has died intestate, and his assets will be distributed, in accordance with s. 23 of WESA, to blood relatives in Switzerland with whom he had no relationship.

Although the words in his computer record contemplate preparation of a formal will at some time in the future, I conclude that Mr. Hubschi’s testamentary intentions were reflected at the time he created the computer entry and when he reviewed the document on the day he died…

Thus, although the deceased’s words are noncompliant with the provisions in WESA, I conclude that it was the deceased’s testamentary intention that his estate should be divided by “A 5 – way split for remaining brother and sisters.”

I order that the document prepared by Mr. Hubschi will be fully effective as though it had been made as the testamentary intention of Mr. Hubschi and that probate of the will be granted to Gregory Kenneth Stack on the basis each of the Stack children will receive a one-fifth interest in his estate.

It should be noted that, at present, the governing legislation in Ontario is significantly different than in British Columbia. In Ontario, laws would not allow the judge the discretion to make a decision like this. Ontario is a “strict compliance” jurisdiction, and the note left by the deceased on his computer would not be a valid will. In Ontario, the result would have been an intestacy. Then the Office of Public Guardian and Trustee of Ontario would likely distribute the estate to the legal heirs in Switzerland. This was clearly not the result the deceased had intended as he had been given for adoption by his mother at birth and had no contact with his blood relations in Switzerland. It was his foster siblings who he had lived with all of his life, and he wanted to leave his estate to them on his death.

In this particular case, it would appear that the discretion provided by the “substantial compliance” legislation in British Columbia has resulted in a more just result than that of Ontario’s “strict compliance” legislation.

Thank you for reading!

James Jacuta

11 Aug

Is Substantial Compliance in Ontario’s Future?

James Jacuta In the News Tags: 0 Comments

On Thursday August 6, 2020 there was a town hall discussion with the Province of Ontario Attorney General, Doug Downey. Part of his virtual discussion with members of the bar included the topic of allowing courts in Ontario greater latitude in validating or rectifying an improperly prepared will in Ontario.

Currently, in Ontario, a person making a will is required to meet all of the legislated formalities relating to the making of a  will, known as “strict compliance”.  If there is an error in complying with the requirements of the legislation, then the will is not valid. At present, the law in Ontario does not give a judge options to correct the error, even if the will was entirely correct otherwise, known as “substantial compliance”.

As the entire country is now attempting to make appropriate changes necessitated by the coronavirus pandemic emergency it is useful to take a look at what other provinces have done and are proposing to do.

In British Columbia, Section 58 (2) of Wills Estates and Succession Act provides the power for the court to make corrections where:  On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents (a) the testamentary intentions of a deceased person, (b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or (c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

Further in Section 58 (3)  of the Wills Estates and Succession Act: Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made (a) as the will or part of the will of the deceased person, (b) as a revocation, alteration or revival of a will of the deceased person, or (c) as the testamentary intention of the deceased person.

Is it time for Ontario to consider making the change from a “strict compliance” to a “substantial compliance” regime for wills legislation? On Thursday August 6, 2020 the Attorney General of Ontario, Doug Downey, was part of a virtual town hall discussion on the merits of such possible changes.

Thank you for reading!

James Jacuta

11 Dec

When can Alberta courts validate unsigned wills?

Nick Esterbauer Wills Tags: , , , , , 0 Comments

Amendments to Alberta’s succession legislation took effect in 2012 to expand the authority of the courts to order that a will is valid, notwithstanding its failure to comply with the formal requirements otherwise imposed under the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”).  Specifically, section 37 of the Act reads as follows:

Court may validate non-compliant will

37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will.

Section 39(2) of the Act addresses the issue of the rectification of a will that has not been signed.  If a court is convinced by “clear and compelling evidence” that the will was not signed as a result of pure mistake or inadvertence and the testator intended to give effect to the document as his or her last will, the court may add a signature to rectify the will.

The recent decision of Edmunds Estate, 2017 ABQB 754, provides clarification regarding the limits of the court’s ability to validate an unsigned will.  In that case, a paralegal had received instructions from the deceased and prepared a will that reflected her instructions, but the new will was never signed by the deceased before she died.  Justice C.M. Jones of the Alberta Court of Queen’s Bench found that the amended Act did not provide the Court with the authority to validate an unsigned will in the absence of clear and convincing evidence that the deceased had intended to sign the document and/or that she had failed to do so by inadvertence or mistake.  The deceased could not have been said to have failed to sign the document by mistake, as she died before making arrangements to execute the will, and Justice Jones found that the evidence that the draft will was intended to be her last valid will fell short of what was required by the legislation.

In Ontario, the doctrine of strict compliance applies.  Unless its defects can be cured by way of interpretation or rectification (the scope of which remedy remains limited), a will that does not comply with the formal requirements of the Succession Law Reform Act, RSO 1990, c S.26, will not be treated as valid and cannot be admitted to probate.

With several other provinces recently adding what Justice Jones refers to as “dispensing clauses” into their respective succession legislation, it will be interesting to see whether Ontario follows suit, opening the door to substantial compliance, in time.

Thank you for reading.

Nick Esterbauer

Other blog entries and podcasts that may be of interest:

·        Considering Wills Where No Strict Compliance with Execution Requirements: Part 1

·        Considering Wills Where No Strict Compliance with Execution Requirements: Part 2

·        More on Rectification

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