Due Execution: Form Before Substance
In Ontario, the formal requirements for making a will must be strictly observed. Whereas other provinces have legislation that allows a Court to cure deficiencies in the formal execution of a will, Ontario’s Succession Law Reform Act (the “SLRA”) does not have any such provision. This can sometimes lead to disheartening results when a person dies believing that they have left their affairs in order, only for their family to discover that the will is signed by only one witness and is totally invalid in Ontario.
Formal Requirements under the SLRA
The law in Ontario requires that, subject to a few exceptions below, a will is not valid unless:
- It is signed at the end by the testator, or by some other person in the testator’s presence and by the testator’s direction;
- The testator either signs the signature or acknowledges the signature in the presence of two or more attesting witnesses, all of whom are present at the same time; and
- The two witnesses then sign as witnesses in the presence of the testator.
This recipe must not be departed from. It requires at least three people to be in the room at the same time – the testator and the two witnesses. If anyone, either the testator or one of the witnesses, leaves the room for even a moment, this might invalidate the will.
Exceptions in Ontario
The two major exceptions to these rules are handwritten “holograph” wills, and wills made by sailors at sea or members of the military on active service. Holograph wills must be written entirely in the handwriting of the testator and signed by the testator at the bottom. They don’t need witnesses. The formalities of execution are also relaxed for sailors making wills at sea or in the course of a voyage and for members of the Canadian Forces making wills while on active service.
Ontario Requires Strict Compliance
Other than these few exceptions, the Courts will not honour a will that hasn’t been executed in strict compliance with the formalities required under the SLRA. The Courts in Ontario do not have jurisdiction to “cure” a will that is deficient in its execution.
In the case of Sills v. Daley, the Court refused to grant probate where a purported will had been signed by only one witness who had signed before the testator. In Sills, it was held that absent a provision allowing a court to admit a document to probate that does not meet the requirements under the SLRA, the Court has no discretion to do so. Strict compliance with the formal requirements is still a necessity in Ontario.
Strict vs. Substantial Compliance
While Ontario requires strict compliance, other provinces have adopted a more lenient approach. For example, section 58 of British Columbia’s Wills, Estates and Succession Act allows the Court to make an order that a record or document (even an electronic one!) can be fully effective as though it had been a will, even if it does not meet the requirements set out under their Act (which are similar to Ontario’s). It is a requirement that the Court must first determine that the document or record in fact does represent the testamentary intentions of the deceased. Provisions like section 58 of British Columbia’s Wills, Estates, and Succession Act are sometimes called “substantial compliance” provisions.
The argument for substantial compliance is that it allows the Court to give effect to the true intentions of the testator when it can be shown that the document in question really does reflect his or her intentions, but the document hasn’t been properly executed due to ignorance or inadvertence. The main argument in favour of strict compliance is that the nature of the requirements for the proper execution of a will acts as a protection against counterfeiting or fraud.
Unless or until Ontario’s SLRA is amended, this province will remain a strict compliance jurisdiction and the SLRA’s recipe for making a valid will must be followed to the letter.
If you are making a will, the best way to ensure that it is done properly is to see a lawyer.
For lawyers preparing wills for a client, it is helpful to develop a consistent practice around execution and to keep detailed notes. If ever called upon, a lawyer might be unlikely to remember the details of the execution of a will prepared years earlier, but can testify as to what his or her consistent practice is and that this practice is always followed.
Happy Holidays! All the best in 2017!