The era of “substantial compliance” is well underway in Ontario.
Just over two years after lawmakers at Queen’s Park passed Bill 245, the Accelerating Access to Justice Act – moving the province from a “strict compliance” regime to one of “substantial compliance” – the legal decisions on the topic are beginning to flow thick and fast.
The change essentially allowed the Ontario Superior Court of Justice to validate wills that would otherwise have been declared void due to technical errors. Before then, Ontario was one of the last strict-compliance hold-outs in Canada, without any legal mechanism for curing the faults in an invalid will, and judges have been quick to take advantage of their new powers.
For example, in one case, the deceased’s will was validated despite an oversight that saw a witness’ signature get lost in the shuffle at a signing ceremony where various wills and powers of attorney were executed on behalf of the testator and her spouse.
In another case, the same judge validated the will of a man whose self-drafted testamentary document was not witnessed by anyone at all as he was satisfied that it expressed the intentions of the deceased, who “just blew the formalities.”
However, the judge in a third case ruled there was not enough evidence to invoke the new powers to revive a revoked will, although he was prepared to grant the request under a different section of the Succession Reform Law Act.
With each decision, judges are adding to a body of caselaw that will make it easier for estate litigators to know where their clients stand, depending on whether they are challenging or defending a testator’s alleged will.
And while it is good to see these testators’ intentions honoured by the courts, I can’t help thinking of all the money their beneficiaries have spent to get the result they wanted – funds that often come straight out of the deceased’s estate.
My worry about the looser substantial-compliance approach has always been the uncertainty that comes with it, because of the way it encourages surviving relatives named in faulty wills to turn to the courts.
The best way for testators to avoid the expense and delay of this kind of estate litigation is to hire an experienced lawyer who can ensure their will is not only properly executed, but also accurately reflects their wishes.
No matter the size of your estate, it is essential to obtain sound legal advice before finalizing an estate plan.
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