In Ontario, Bill 245, a large omnibus Bill, the Accelerating Access to Justice Act 2021 (AAJA) received Royal assent on April 19, 2021. It made amendments to many Ontario statutes. Schedule 9 of this Act made significant changes to the Succession Law Reform Act, R. S.O. 1990, c.S. 26 (SLRA) which had been largely unchanged since it was enacted over 40 years ago.

Many of these amendments bring Ontario in line with legislation in other Provinces.  The focus of this article is a summary of the reported cases considering s. 21.1 of the SLRA which is a validating provision that is found in most of the other Provincial Wills. [i]

Under s. 21.1, for deaths occurring on or after January 2, 2022, the Superior Court now has the authority to make an order validating a document or writing that was not properly executed under the requirement of SLRA. This applies to the execution, revocation, alteration or revival of documents.

To succeed on an application for court validation, the applicant must satisfy the court that the document in question sets out the testamentary intention of a deceased.  Section 21.1 is subject to s. 31 of the Electronic Commerce Act, S.O. 2000, c-17 (the “ECC”), which excludes the application of the ECC to wills, codicils, testamentary trust and powers of attorney – meaning that s. 21.1 cannot be used to save a will signed electronically.

There have now been a number of Ontario court cases on this new provision. Many of the decisions are by Justice Myers.  In  Vojska v Ostrowski, 2023 ONSC 3894, the lawyer who had prepared the Will for the deceased inadvertently missed signing as one of the witnesses to a will.  Justice Myers had no difficulty validating the document as in his own words, “it is hard to imagine a more textbook example of a case for which the new power was intended.”

In the case of Vojska v Ostrowski, 2023 ONSC 3894, Justice Myers reviewed his earlier decisions on the validating provision.  This included the case of Cruz v. Public Guardian and Trustees 2023 ONSC 3629, in which Justice Myers concluded “easily” (in his own words) to validate the document.  The document in question was a preprinted form of a will with some handwriting, which had been signed and dated by the deceased but not witnessed.  It had been kept by the deceased in a sealed envelope with an enclosed note from the deceased asking that the estate trustee get the will witnessed.

In his review of the case law in Vojska v Ostrowski, 2023 ONSC 3894, Justice Myers refers to the test for validation, developed in Western Canada, which has a provision similar to s. 21.1. The crucial question to be answered is whether there is “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”.  (Estate of Young, 2015 BCSC 182 at page 35) Mr.  Justice Myers questioned whether an unsigned draft will could ever be sufficiently fixed and final and if the phrase “not properly executed” found in section 21.1 could include wholly “unexecuted” (unsigned) documents.

An answer to this question is found in the unreported case of Grattan v Grattan in which Justice J. M. Johnston validated an unsigned and unwitnessed document of the deceased. This unreported case has been brought to the attention of the estate bar in a blog written by David Morgan Smith and Michael Bolotenko of the law firm Hull & Hull LLP.  In the Grattan case, the deceased met with her lawyer and a memorandum from the deceased specified that the applicant was to get the residue of the estate. The Will was prepared and a draft sent by the lawyer to the deceased who responded via email with some minor changes. Unfortunately, the deceased died before she could meet to sign her Will.  Justice J.M.  Johnston found it met the Western test of being a deliberate or fixed and final expression of intention to dispose of her property.

As these cases illustrate, the new validating provision has had a profound effect on what might be held to be a valid Will in Ontario.

Suzanna Walter, Scotiatrust Estate and Trust Consultant

[i] Other significant changes to the SLRA include provisions for the virtual witnessing of wills, changes to the revocation of wills by marriage, and changes to the impact of separation and divorce upon testate and intestate succession.