Succession Law Reform Act: Substantial Compliance
Co-written by: Kim Gale and Kiran Sanghera
Imagine being able to prove that a handwritten note in your notebook could be your last will and testament. That is exactly what the newest Ontario concept in estates law, “substantial compliance,” strives to do. While it is a fairly new concept in the estates world, estate litigators ought to be aware of the prevalence of its existence.
Succession Law Reform Act, R.S.O. 1990, c. S.26
Substantial compliance can be found under s. 21.1 of the Succession Law Reform Act (SLRA). The SLRA states that:
21.1(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. 2021, c. 4, Sched. 9, s. 5.
What is substantial compliance?
Section 21.1 of the SLRA came into effect at the beginning of 2022. Since
then, there have been few cases where it has been successful.
Prior to its existence, Ontario operated under a strict compliance regime in
which there was little room for ambiguity. Under this regime, a document
was considered to be a valid last will and testament if the document was
signed by the testator, the testator’s signature was made in the presence of two non-familial
witnesses and the said witnesses also signed the will in the presence of the testator.
Substantial compliance provides more flexibility. Under the substantial compliance regime, the court
can validate a document to be fully effective as a last will and testament even if it is not properly
executed in accordance with the SLRA but does set out the full and final testamentary intentions of
the deceased.
Difference between substantial compliance and holograph will
Similar to that of a holographic will, the document may be handwritten and signed by the testator.
However, with the new inception of substantial compliance, a document can be handwritten or typed
and not signed by the testator or even witnessed.
A holograph will is different from that of a document validated under s. 21.1. A holograph will is in
the handwriting of the testator as well as signed by the testator and need not be witnessed.
Under s. 21.1, a document may be handwritten or by electronic means (i.e. typed) and validated as a
will if the document in question sets out the full and final testamentary intentions of the deceased.
Recent cases in substantial compliance
There are a few notable cases that offer insight into the implantation of s. 21.1, especially with
further clarification of what it means to prove the full and final testamentary intentions of the
testator.
Salmon v. Rombough, 2024 ONSC 1186
The deceased testator had properly executed a will with a solicitor in 2012. In this will, there were
numerous bequests made to various individuals, including family members and friends. Given that
the deceased was not as close in relationship to certain family members and friends, he decided to
revise his 2012 will in 2021. The deceased did not attend a lawyer’s office to make such revisions but
instead photocopied cut-and-pasted sections of his 2012 will into his notebook and handwrote new
provisions he wanted to be included in his will. He dated the notebook as Dec. 31, 2021. The
deceased then passed away a few weeks later on Jan. 15, 2022 (two weeks after the s. 21.1 became
effective in Ontario).
Given the implementation of s. 21.1, the court considered s. 21.1 to the SLRA as well as the legal
principles for determining testamentary capacity. Justice Rick Leroy in his decision ultimately decided
that the 2021 notebook embodied the deceased’s full and final testamentary intentions and was a
valid codicil to the 2012 will.
Cruz v. Public Guardian and Trustee, 2023 ONSC 3629
The deceased testator drafted his own will in his handwriting and signed it. However, the document
was not witnessed. The deceased testator placed the document into a sealed envelope and provided
such envelope to his proposed executor instructing the executor to have the will witnessed. The
deceased passed away before the document was witnessed.
The court considered the new factors of s. 21.1 of the SLRA. Justice Fred Myers in his decision
confirmed that the document recorded “a deliberate or fixed and final expression of the intention to
the disposal of the deceased’s property” and even stated in his decision that “fixing this type of
mistake is precisely what s. 21.1 seems to be for.”
Vojska Estate v. Ostrowski, 2023 ONSC 3894
In this case, the deceased and her husband attended a lawyer’s office in 2011 to execute their newly
drafted wills and powers of attorney. It was at this time that the deceased and her husband attended
to sign documents, all documents were signed by the deceased and her husband and witnessed by a
law clerk. All documents were witnessed by the lawyer, except the will of the deceased. It was not
until the deceased passed away on Sept. 9, 2022, that the error was discovered.
The court considered s. 21.1 of the SLRA and determined that the will prepared for the deceased,
which had not been properly executed, not to the testator’s intention, was a valid and fully effective
will as if it had been properly executed or made. In his remarks, Justice Myers defined this case as
the “textbook example” for which the newly implemented s. 21.1 was intended.
Conclusion
While the concept of substantial compliance is constantly expanding, it is important to note that it not
only accounts for not properly executed documents by testators but also mistakes or omissions made
by lawyers in the execution of a will.
As demonstrated in recent case law, it looks like the courts will be turning to s. 21.1 quite often to
determine the validity of a document.
This article was originally published by Law360 Canada part of LexisNexisCanada Inc.