Prior to January 1, 2022 an Ontario will which was not properly executed according to Ontario law was invalid, and could not be made valid by a Court order even where the deceased’s intentions were clear. This is what is known as requiring “strict compliance” with the legislation compared to the “substantial compliance” regimes in most other provinces.
Under the new rules, a Court may declare a document or writing to be a valid will (or valid revocation, alteration, or resurrection) if the Court is satisfied that it sets out the testamentary intentions of the deceased.
As an example, a valid will requires two witnesses to the testator’s signature, and they must sign the will as witnesses. If the witnesses were present, watched the testator sign, but then due to oversight only one witness actually signed the will, this would have resulted in an invalid will. In Ontario, a judge would not have been able to declare the will to be valid, even if they were satisfied that both witnesses had been present. This has now changed.
While it is good that a mechanism for correcting such oversights now exists, it is unlikely that most substantial compliance applications will be this straightforward. Lawyers who litigate in the estates field expect to see a significant increase in will challenges as a result of this change. Until we see enough rulings from Ontario courts on this topic, we will be looking to decisions from other provinces for guidance on the tests and standards required for success in substantial compliance cases.