The Court interprets its new powers to validate a Will

Ontario’s Succession Law Reform Act (“SLRA”) was recently amended, and among other changes, now allows the Court to validate a will. Specifically, the new section 21.1 states:

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.

This section applies if a person died on or after January 1, 2022, being the date on which this provision came into effect. There are now a few cases where this new provision was considered.

The “textbook case”

The Court described Vojska v Ostrowski, 2023 ONSC 3894 as a “textbook example” of the circumstances to which the provision is intended to apply. In 2011, the deceased and her husband hired a lawyer to prepare new wills and powers of attorney and attended a “signing ceremony” at the lawyer’s office to execute the documents in the presence of two witnesses, the lawyer and law clerk, as required by the SLRA. All of the documents were signed by the deceased and her husband and witnessed by the law clerk. All of the documents, except the will of the deceased, were witnessed by the lawyer.

Following the death of the deceased in 2022, this error was discovered by the estate trustee, who applied to the Court for an order declaring the document to be a valid pursuant to s.21.1. The Honourable Mr. Justice Myers granted the application based on the following:

• the document was drafted by the lawyer as a will, and as such there was no doubt that its purpose and effect was to express the testamentary intentions of the deceased;
• the mistake was not the testator’s, but the lawyer’s, whose omission and lax approach to the execution of the wills should not invalidate an otherwise validly made will.

A self-made will signed only by the testator

In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, the deceased prepared his own will on a pre-printed form, parts of which were handwritten, signed it himself, but did not have it witnessed. Instead, he placed the will in a sealed envelope, gave the envelope to his executor, and left a note for the executor to get the will witnessed. The Court was satisfied that the document was authentic and recorded the deceased’s intentions as to the disposal of his property following his death. The Court found that the deceased “blew the formalities” and did not quite understand the concept of witnessing a signature, which should not be a barrier to having the document declared a valid will.

Revival of a will by way of holograph codicils does not engage s. 21.1

In the Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315, the applicant suggested that s.21.1 could be used to revive a will. In that case, the testator’s will was revoked by marriage. He later wrote two notes in his own handwriting, which he signed, and attached to the inside cover of his will. The first note set out specific bequests, and the second note stated his wishes respecting the disposal of his remains. The Court determined that the two notes were valid holograph codicils pursuant to s.6 of the SLRA. The sole issue was whether the will had been revived. The Court stated that s.21.1 cannot be used to revive the will. There is nothing in the wording of that provision that allows the Court to read into a document an intention to revoke, alter or revive a will. Rather, s.21.1 is intended to validate documents that do not strictly comply with the execution requirements of the SLRA but which set out a testator’s testamentary intentions. The Court found that the will was revived pursuant to s.19(1)(b) of the SLRA.

Comments in obiter: Interplay between pre-lawsuit discovery and a potential s.21.1 claim

In White v. White, 2023 ONSC 3740, the applicant sought discovery of the testatrix’s legal files even prior to filing a challenge to the will that was being promulgated. The applicant argued that s.21.1 might allow him to seek validation of a draft will in the lawyer’s files but first, he needed to know what was in those records. The main issue was obviously not s.21.1, but the Honourable Mr. Justice Myers was dubious that s. 21.1 would apply to this scenario. Justice Myers noted that a draft is just that: a draft, which often is changed even at the signing stage. His Honour further mused whether the minimal threshold test for discovery should be applicable when a s.21.1 claim is possible, and how that might be expressed in light of the balancing exercise a Court must undertake between intrusiveness, cost, delay, and prejudice.

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