In November of 2023, I wrote about Ontario’s topical “validating” provision – section 21.1 of the Succession Law Reform Act (SLRA) – and whether it might risk “emboldening those seeking self-help remedies.” More than a year later, the case law has continued to evolve on this provision, and I feel there is wisdom in revisiting it.
This blog sequel reviews a trio of cases that have arisen in the interim, each of which has served to further clarify the boundaries of substantial compliance in this province, for the benefit of will-drafters, litigators, and their clients alike.
As a quick refresher, using Cruz v Public Guardian and Trustee, 2023 ONSC 3629 as our guide, where the “deceased just blew the formalities” (see Cruz at para 9) section 21.1 of the SLRA empowers the courts to declare a document as valid and fully effective as a will, so long as the propounder of the purported will can establish its authenticity and so long as the purported will “records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”.
“Crafting” a Will
In Salmon v Rombough, 2024 ONSC 1186, the deceased, Mr. Rombough, had cut-and-pasted photocopies of provisions from his prior solicitor-drafted and witnessed will into a notebook, and penned handwritten annotations therein.
After reviewing the evidence of several family members and friends of Mr. Rombough, Justice Leroy considered the issue of testamentary capacity at length, while quickly dismissing the possibility of undue influence or suspicious circumstances on the facts of the case. What I would call Mr. Rombough’s “crafted” will, was found by the Court to be a document prepared efficiently and precisely, not “something a four-year-old would Mickey-Mouse together”. What you might call “well-crafted”.
The balance of Justice Leroy’s decision rested upon the linchpin issue of testamentary intention, which analysis provides a noteworthy review of the case law from Manitoba, British Columbia, Ontario, and Nova Scotia. There was found to be particular affinity between the case at bar and MacKinnon v MacKinnon (2021) NSSC 272, where notes in a notepad – unsigned, undated, and unwitnessed – were found to form a valid will.
Mr. Rombough’s own notebook was also upheld as a valid will in the circumstances.
Beneficiary as Witness
In O’Neill Estate, 2024 ONSC 2228, two individuals signed as “witnesses” to the execution of the deceased’s will, while neither had actually been in the presence of the testatrix at the time she signed. Meanwhile, the deceased’s brother propounded the purported will, claiming he had “helped his sister make the Will” and witnessed its execution, further claiming he did not sign as an attesting witness because he was named as a beneficiary under the terms of the will.
Section 12 of the SLRA would presumptively disinherit the brother as an avowed witness to the execution of the will. However, subsection 12(3) affords the Court discretion to save the disposition where it is otherwise satisfied there is an absence of “improper or undue influence upon the testator”.
In O’Neill, Justice MacLeod not only found the will valid under section 21.1 of the SLRA, but also found it was appropriate to exercise the Court’s discretion under subsection 12(3) in the circumstances of the case. This served to show interesting interplay between two key considerations underlying the SLRA – adherence to the formalities of execution, on the one hand, and the discouragement of beneficiaries acting as witnesses on the other.
“Cancer Society”
In the recent case of Urback v Canadian Cancer Society et al., 2025 ONSC 3313, the deceased left a holograph will which was unsigned and which purported to benefit the “Cancer Society”. On uncontested evidence, the intended beneficiary was the Canadian Cancer Society, and Justice Papageorgiou thus found the Canadian Cancer Society to be the recipient of the estate by way of cy-près, while validating the unsigned will under section 21.1 of the SLRA.
Lesson Learned
I would continue to caution against reliance upon section 21.1 of the SLRA as a license to draft one’s own will. Employing the services of a skilled estate lawyer remains best practice—and best advice. These cases merely illustrate the deployment of safety nets where best practice fails to be used.
That said, the Court has sent a clear signal: form should serve intention, not defeat it. Though “close enough” is rarely good enough, section 21.1 is proving to be the lifeline the Legislature intended for estates caught on the wrong side of a technical misstep.
— Michael von Keitz