Ontario’s substantial compliance: How does the new regulation impact estate lawyers?

This article was provided by eState Planner

Following the lead of Alberta, BC, Manitoba, and other provinces, Ontario updated its legislation last year to allow for “substantial compliance” for execution of wills. Recently, the first judicial decisions were released interpreting the new legislation.

eState Planner recently focussed their weekly webinar on helping lawyers better understand how this impacts their practice. During the webinar, they discussed the recent case law and the emerging trends.

This article shares insights from the webinar. To learn more about substantial compliance in Ontario or many other key issues, you can access over 20 on-demand webinars in eState Planner's webinar library. These videos cover a range of topics aimed at helping lawyers improve their practice and earn CPD credits. Additionally, during ‘Make a Will Month’ a selection of valuable resources for lawyers in the Make a Will Month toolkit.

Historical requirement for valid wills

Prior to 2022, Ontario required strict compliance regarding the execution of wills. If any of the formal requirements were missing it was not a valid will.

Find out what are the requirements for a will to be valid in Canada in this article.

Introduction of “Substantial” compliance legislation

According to the Succession Law Reform Act, section 21.1, for deaths occurring after 2021, the court has the authority to validate a document as a will, even if it does not meet the formal requirements, such as having two witnesses present.

Basic prerequisites for substantial compliance

For a court to validate a non-compliant document (electronic documents are excluded), the court must be satisfied on a balance of probabilities that 1) the document is authentic and 2) it reflects the testator's testamentary intentions being a “deliberate or fixed and final expression” of the testator's intentions regarding the distribution of their property upon death.

Case law developments

The cases that have been decided to date have ranged from the classic to the novel.

One of the first cases dealt with the "classic" scenario of a will prepared by a lawyer that lacked the signature of one of the witnesses (Vojska v. Ostrowiski). Unsurprisingly, the court deemed it a valid will, highlighting that the lawyer's omission was unintentional and the testator had believed the will to be valid.

Two other cases, Cruz v. PGT and Zerbe Estate, involved client-prepared documents that were signed but not witnessed. In both cases, the testator was aware of the requirement for witnesses but neglected to have the document witnessed. The court upheld the validity of the will in both instances.

In the most novel of cases heard so far (Grattan Estate), a lawyer prepared a draft will and sent it to the client for review. The client made some minor spelling corrections and sent it back to the lawyer. However, the document was never signed by the testator and was not witnessed. This unsigned document was still deemed a valid will.

Understanding the impact on legal practice

Before 2022, an Ontario lawyer could easily identify that a particular document was not a will if it lacked three signatures. However, now, even an unsigned document prepared by a third party could be accepted as a valid will.

As a result, estate administration lawyers should consider a few points:

• Advise your executor-client to consider any documents, whether signed or not, containing testamentary wishes as potentially valid.
• When presented with a document that could be validated as a will, consider whether a court application should be brought.
• Remind executors who wish to administer an estate without probate of the heightened risks if a later document is found to be a valid will. Administering an estate without the protection of a Certificate of Appointment may expose them to liability in such cases.