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Substantial Compliance for Will Making

On January 1, 2022, a number of important changes were made to the law affecting estates and wills in Ontario. Among them, Ontario’s Succession Law Reform Act (the “Act”) now allows the court to declare a will valid even if it “was not properly executed or made under” the Act, so long as it is satisfied that it sets out the testamentary intentions of the deceased.

Significant formalities are contained at s. 4(1) of the Act which provides that:

(2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

Previously, if a will was not drafted or executed in complete compliance with the Act, the will would be considered invalid. That could result in obvious unfairness where the intention of the maker of the will was clear.

Time will tell how judges in Ontario will loosen compliance with these and other requirements and under what circumstances they are prepared to do so. In the meantime, caselaw from other jurisdictions such as British Columbia where the doctrine of substantial compliance has already been adopted will may provide some useful guidance.

If you have questions about the validity of a will, or your rights or obligations relating to an estate, contact MZS Lawyers today.

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