What happens if a Will reflects someone’s wishes but doesn’t meet the legal formalities? This article explores how recent changes to Ontario law allow courts to validate certain “defective” Wills, while outlining common pitfalls, potential costs, and why proper legal guidance remains essential.
Estates and Trust lawyers in Ontario occasionally encounter situations where a document appears to reflect the testamentary intentions of a deceased individual but fails to comply with the formal execution requirements set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). Historically, such deficiencies could invalidate a Will entirely. However, legislative changes that came into force on January 1, 2022, have significantly altered how Ontario courts address defective testamentary documents.
This article addresses the treatment of invalid Wills before and after these amendments, the legal requirements for a valid Will, the types of deficiencies that commonly arise without legal oversight, and the practical steps lawyers may take to address these issues.
Pre–January 1, 2022: How were invalid Wills treated?
Prior to January 1, 2022, Ontario law required strict compliance with the statutory formalities governing the execution of Wills. If a document failed to meet those requirements, the courts had little discretion to correct the defect. Even where a document clearly reflected the deceased’s wishes, a failure to comply with the formal execution rules would typically render the Will invalid.
In such circumstances, the estate would be administered as though the deceased had died intestate. This meant that the distribution of the estate would follow the statutory intestacy regime set out in the SLRA rather than the wishes expressed in the defective Will.
For lawyers and beneficiaries alike, this strict approach could produce outcomes that conflicted with the apparent intentions of the deceased. A minor technical error, such as an improperly witnessed document could invalidate an otherwise clear testamentary plan.
What are the requirements for a properly executed Will?
Despite the introduction of the substantial compliance provision, the formal requirements for executing a valid Will remain unchanged. Section 4(2) of the SLRA provides that a valid Will must meet several criteria.
First, the Will must be signed by the testator or testatrix. Second, the signing must occur in the presence of two witnesses. Finally, both witnesses must sign the Will in the presence of the testator.
These formalities are intended to serve several important purposes, including confirming the authenticity of the document, preventing fraud or undue influence, and ensuring that the testator intended the document to operate as their final testamentary instrument.
Although the law now allows courts to remedy certain defects, compliance with these requirements remains the safest and most reliable way to ensure that a Will is valid.
Post–January 1, 2022: How has the law changed?
Ontario’s approach changed with the introduction of section 21.1 of the SLRA, which came into force on January 1, 2022. This provision introduced the doctrine of “substantial compliance” into Ontario succession law.
Under section 21.1, the Superior Court of Justice may order that a document or writing be fully effective as a Will even if it was not executed in accordance with the formal requirements of the Act. The court must be satisfied, on a balance of probabilities, that the document sets out the testamentary intentions of the deceased or reflects an intention to revoke, alter, or revive a Will.
This amendment provides courts with the flexibility to validate documents that clearly reflect a deceased person’s intentions despite technical deficiencies in execution.
Common Deficiencies Without Lawyer Oversight
In practice, many defective Wills arise in situations where individuals attempt to prepare their own “DIY” Wills without legal guidance. While these documents may adequately express the individual’s wishes, they often fail to comply with the statutory execution requirements.
Common deficiencies include:
- Missing or incomplete witness signatures;
- Witnesses who were not present at the same time as the testator;
- Beneficiaries acting as witnesses;
- Unclear language regarding the distribution of assets; or
- Failure to clearly identify the estate trustee or beneficiaries.
These errors can create uncertainty during estate administration and may require court intervention to determine whether the document can be recognized as a valid testamentary instrument.
Fixing Errors and Addressing Costs
When a defective Will is discovered during the administration of an estate, the estate trustee and beneficiaries typically have two options.
The first option is to apply to the Superior Court of Justice for an order validating the defective Will pursuant to section 21.1 of the SLRA. Per the recent decision of Marsden v. Hunt et al., 2024 ONSC 1711, this would involve a formal court application supported by affidavit evidence that speaks to the authenticity of the document and the fixed and final testamentary intentions of the deceased.
Evidence supporting these elements may include the deceased’s signature, witness testimony, evidence regarding the drafting or preparation of the document, and contextual evidence explaining the circumstances in which the document was created.
The second option is to proceed with the administration of the estate as an intestacy by applying for a Certificate of Appointment of Estate Trustee without a Will. Under this approach, the estate is distributed according to the statutory intestacy rules rather than the distribution scheme outlined in the defective document.
How to proceed depends on the circumstances, and the guidance from an estates lawyer would greatly benefit the estate trustee in determining how to proceed.
Conclusion
I was recently retained to bring an application before the Court to have a Will validated. When advising my clients, I emphasized that even where the evidence supporting the authenticity and intention of the document appears strong, the court must still be satisfied that the statutory requirements for validation have been met. If the court is not persuaded on a balance of probabilities that the document reflects the deceased’s testamentary intentions, the application may be denied. In that event, the estate would still need to be administered as an intestacy, and the estate would have incurred the additional costs associated with bringing the application.
For that reason, an estate trustee should carefully evaluate the strength of the available evidence. An estates lawyer can advise the client on the likelihood of success before proceeding with such an application in these situations. The introduction of section 21.1 of the Succession Law Reform Act represents a significant development in Ontario succession law. By adopting the doctrine of substantial compliance, the legislature has provided courts with greater flexibility to uphold testamentary documents that reflect the genuine intentions of the deceased, even where technical defects exist.
For estate lawyers, the new provision underscores the importance of gathering strong evidence of authenticity and testamentary intention when seeking to validate a defective Will, while also advising clients carefully about the potential costs and risks associated with such applications.
Nevertheless, the safest course remains the proper execution of a Will in accordance with the statutory formalities, and strongly advisable to retain an estate lawyer to ensure you are in compliance of same