On January 1, 2022, Ontario will become a substantial compliance jurisdiction in terms of the formal requirements that must be met in order to make and modify wills. Prior to the new laws taking effect, Ontario was a strict compliance jurisdiction. Under strict compliance, wills are invalid if they do not meet all of the formal requirements of execution, and a judge does not have authority to "validate" a will which does not meet these requirements.

On April 19, 2021, Bill 245 – the Accelerating Access to Justice Act received royal assent and added a new Section 21.1(1) to the Succession Law Reform Act (the "SLRA"). The SLRA now allows the Superior Court of Justice to validate a Will that does not meet all the required formalities. However, the court must be satisfied that the document or writing "sets out the testamentary intentions of a deceased".1 The SLRA introduces a shift from strict compliance to substantial compliance and applies to deceased persons who died on or after January 1, 2022.

Until the substantial compliance regime is tested by the Ontario courts, it is unclear exactly how the new law will operate. Until then, we can look to other Canadian jurisdictions for some guidance. British Columbia became a substantial compliance province in 2014. In Hubschi Estate (Re), the Supreme Court of British Columbia concluded that Mr. Hubschi's non-compliant Will was valid. Mr. Hubschi wanted to distribute his assets to his foster siblings but did not meet the requirements under the Wills, Estates and Succession Act, SBC 2009, c 13. If the Will was found valid, his assets would be distributed to his foster siblings. However, if the Will was found invalid, his assets would be distributed to his blood relatives with whom he had no relationship.

Mr. Hubschi created a Word Document before his death that said "Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor". The court was satisfied on a balance of probabilities that the document was an expression of Mr. Hubschi's testamentary intentions and that the document contained Mr. Hubschi's full, final and fixed intentions. The court looked to the following factors when inferring Mr. Hubschi's intention:

  • Mr. Hubschi was hospitalized prior to his death and could not retain a lawyer to incorporate his testamentary intentions in a Will;
  • he had a close relationship with his foster siblings; and
  • he reviewed the document on the same day of his death.

As evidenced by Mr. Hubschi's case, the new law provides flexibility and can improve access to justice. However, this change in legislation will also inevitably cause uncertainty.

In theory, it could result in voice notes, text messages, and sticky notes on an existing will, being admitted as valid testamentary documents.

Footnote

1 Accelerating Access to Justice Act, SO 2021, c 4, s 21.1(1).

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