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Don’t Wonder if the Court Could Save Your Will, Wonder if it Should

Effective January 1, 2022, the Succession Law Reform Act (SLRA) was amended to include section 21.1, permitting Court-ordered validity of an otherwise deficient Will. The language of subsection 21.1(1) reads as follows:

“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 change moved Ontario from what was known as a “strict compliance” regime to a “substantial compliance” regime. That is to say, if one failed to adhere to the formalities set out in the SLRA, an Ontario Will would simply be found invalid with no option for it to be saved.

Now, notwithstanding a failure to adhere to the formalities, a Court can save an otherwise deficient Will.

Although the legislation was expanded to allow virtual witnessing of Wills through use of audio-visual technology, electronic Wills are explicitly excluded under these provisions, pursuant to subsection 21.1(2). This restraint precludes the testator and witnesses from affixing a digital signature to the document.

Similarly, it remains the case that a testamentary document must be in writing – a video recording setting out one’s testamentary wishes, for example, will not be ordered valid by the Court.

Ontario Courts’ newfound remedial powers 

As a demonstration of the Courts’ newfound remedial powers, Grattan v Grattan, an unreported decision of the Ontario Superior Court, featured an example of an unsigned Will being admitted to probate, the testatrix having died 15 days after emailing revisions of her draft Will to her solicitor.

The introduction of section 21.1 of the SLRA now aligns Ontario with much of the rest of Canada (see, for example, sections 58 and 59 of British Columbia’s Wills, Estates and Succession Act), but is it an improvement?

On the one hand, the Court serves a gatekeeper function in ensuring the testamentary intentions of the deceased are preserved, and this change expands that function. On the other hand, this change risks emboldening those seeking self-help remedies.

The 3 objectives of an estate plan

Why retain a professional to draft my Will, when I can simply draft my own? If I make a mistake, the Court can fix it, right?

When it comes to developing an estate plan, there are three (3) broad objectives:

  1. to ensure the disposition of one’s property upon death accords with one’s wishes;
  2. to ensure the minimization or deferral of income tax liabilities; and,
  3. to ensure the minimization or elimination of Estate Administration Tax (probate fees).

Unintended consequences of poorly drafted Wills

Although the Court can now save a deficient Will by ordering its validity, the role of the Court is not to optimize your plan.

If your plan is inefficient from an income tax perspective, your estate may pay more to the CRA than what otherwise may have been necessary.

If your plan is inefficient from an Estate Administration Tax perspective, the Court will not substitute its own beneficiary designations, changes in asset ownership, or Will language.

If your plan is incomplete – perhaps you failed to account for a predeceased child, for example, unintentionally disinheriting some of your grandchildren – your wishes, as expressed, may not fully encapsulate your true intentions. As such, the distribution of your property on death may not accord with those true intentions.

There are, of course, the added considerations of the legal costs involved in seeking a Court remedy to have a Will ordered valid and the question of obtaining professional advice as concerns potential claims against your estate.

The tools are available for you to perform surgery on your own midsection, but you surely would rely on the skills of a surgeon.

Why, then, would you draft your own Will?

Access to tools does not ensure their skillful use.

When you are gone, you no longer have a voice. Rely on the skills and training of a professional estate lawyer from the outset. Don’t leave a poor estate plan.

— Michael von Keitz

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.