Executing Wills – There’s no magic to it, but there are rules

 By: Rob Hiseler

Historically, Ontario was a “strict compliance” jurisdiction, where if certain very formal rules weren’t followed then an effective will wouldn’t be created.  Sometimes only parts of an improperly signed will were destroyed, but the end result was several court cases that would likely have seemed absurd to the general public.

In 2022, updates to the Succession Law Reform Act (“SLRA”) allowed for wills that didn’t comply with sections 3, 4, and 7 of the SLRA to be validated by the court. Ontario is no longer a “strict compliance” jurisdiction.  If you fail to follow the rules for signing a will, it may still work if it’s validated by the courts.

To summarize, the SLRA requires a will to be:

-          In writing*,

-          Signed** by the person making the will,

-          In front of 2 or more witnesses,

-          All signing at the same time

-          And the person making the will signs “… at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will”

The court’s power to validate a will is limited to fixing errors in following the signing rules, not a failure of a purported will to capture someone’s intention.  For example, Justice Chang stated in Re: Estate of Harold Franklin Campbell:

“s. 21.1(1) does not… provide the Court with license to read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence.”

To date, we’ve seen wills be salvaged where:

-          The witnesses didn’t see the person making the will sign (Re: O’Neill Estate, 2024 ONSC 2228 (CanLII))

-          One of the witnesses forgot to sign the will (Marsden v. Hunt et al., 2024 ONSC 1711)

-          A homemade copy of an existing will with edits (Salmon v. Rombough, 2024 ONSC 1186)

-          A note written by the deceased that expressed an appreciation and intention to make a will (Kertesz v. Kertesz, 2023 ONSC 7055)

While this power of the courts is helpful for rectifying wills that weren’t properly executed, the old adage of “an ounce of prevention is worth a pound of cure” applies here.  Our experience with these types of files has been that the amount of effort to validate an improperly executed will is easily 5-10 times more work than making a will properly the first time.  Please reach out if you want to review your will or make a new one!

* No TikTok wills yet!

** It wouldn’t be law without some exceptions and special rules.  In this case, they’re good ones allowing people to instruct a helper to sign on their behalf when they’re not able to sign, for example in the case of a disability.

Disclaimer: This blog is for informational purposes only and is not legal advice. Every person’s situation is different. If you want to prepare a Will, speak to a lawyer about the right estate planning tools for you.