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Ontario’s decision to allow courts to validate an improperly executed will is creating uncertainty regarding how far a judge might go in accepting non-compliant documents.

In the two years since Ontario added the will-validation provision to its estate law, courts have validated a will the deceased had failed to sign, a will that no witnesses had signed, and a will that existed only as an unsigned, unwitnessed electronic file — even though the legislation appears not to apply to electronic wills.

“It’s a little bit of a Wild West right now,” said Demetre Vasilounis, an estate lawyer with Fasken Martineau DuMoulin LLP in Toronto.

Also unclear is the extent to which lawyers and executors would be obligated to disclose the existence of a non-compliant will that could be validated by a court, said Krystyne Rusek, an estate lawyer with Speigel Nichols Fox LLP in Mississauga, Ont.

Before the provision took effect, in 2022, executors were not obliged to disclose the existence of a will that was improperly executed. Now, “rather than looking for a document [among the deceased’s effects] that says ‘Last Will and Testament,’ an [executor] might have to read through some scribbles on a napkin to see if it is a possible will,” Rusek said.

In 2021, the Ontario government added a will-validation provision to its Succession Law Reform Act (SLRA) as part of a broader set of estate law reforms. Section 21.1 took effect for deaths occurring on Jan. 1, 2022, and later, and gives courts the power to validate a document that was improperly executed if the document “sets out the testamentary intentions of a deceased, or an intention of a deceased to revoke, alter or revive a will.”

Prior to 2022, a will in Ontario that had not been signed by the testator in the presence of two witnesses — with those witnesses also signing in the testator’s presence — generally could not be saved, Vasilounis said. Sec. 21.1 is meant to address cases in which a testator’s intentions might be thwarted solely due to a technicality.

The courts used the new provision in the June 2023 decision Cruz v. Public Guardian and Trustee, in which the testator signed a typewritten will but failed to have it witnessed; and in the October 2023 decision Kertesz v. Kertesz, in which the testator left a handwritten, unsigned will.

However, the court validated a will that existed only as an electronic draft in the February 2023 decision Grattan v. Grattan. Subsection 21.1(2) of the SLRA — which bears the header “No electronic wills” — appears to exempt electronic documents from the validation provision. The court “likely misapplied” the provision, Rusek said.

Vasilounis suggested the introduction of Sec. 21.1, combined with greater general acceptance of electronic wills, may eventually lead the province to permit such wills. British Columbia is the only province that allows them.

Another notable decision was White v. White, in which a child of the deceased asked the court to compel the deceased’s lawyer to produce any of the deceased’s files that could be “testamentary” to see if any document could be validated under the new provision. Under an existing valid will in that case, the applicant was to receive only 10% of the estate. The court reluctantly issued the order only after the applicant produced evidence that the deceased may have been preparing a new will.

Rusek said case law on Sec. 21.1 indicates that a court will validate a will that fails to comply with formalities if the court deems a document to be authentic and reflect the testator’s final intentions. However, the legislation is awaiting a precedent setting decision, as no applicants in the cases to date were opposed.

“We haven’t had a case where someone was contesting that it was the handwriting of the deceased,” Rusek said. “We do not have a case where there is competing evidence as to the deceased’s fixed and final intentions.”

This article appears in the March issue of Investment Executive. Subscribe to the print edition, read the digital edition or read the articles online.