Have No Fear, Section 21.1 is Here: Ontario’s Fix for Estate Planning Execution Errors

An amendment to the Succession Law Reform Act in Ontario has created a new option for a court to fix certain errors in the execution of some estate planning documents. 

Prior to January 1, 2022, the Succession Law Reform Act (“SLRA”) mandated that in order to execute a non-Holograph Will, it must be in writing, and it must be signed and witnessed in accordance with Sections 3, 4, and 7 of the SLRA.[1]

On January 1, 2022, amendments were introduced to the SLRA which provided that even when a document purporting to be a Will (or Codicil) does not strictly comply with the formalities of execution, the Court still has authority to validate said document as a Will (or Codicil). [2] 

Court Ordered Validity

The amendment is found in Section 21.1[3] of the SLRA and provides that if the Court is satisfied that a document or writing that was not properly executed sets out the testamentary intentions of the deceased, the Court may, on application, order that the document or writing is valid and fully effective as the Will of the deceased, as if it had been properly executed or made.

Since its inception over three years ago, perhaps given the time it takes to get a case to court and that this only applies to documents for those who pass away on or after January 1, 2022, there have not been a lot of decisions on this yet.

From the few decisions to date, one common theme that exists in cases where Section 21.1 has been analyzed is that it functions more akin to a shield of testamentary intentions rather than a sword to challenge them. As Justice Chang stated in Estate of Harold Franklin Campbell (Re)[4]:

“s. 21.1(1) does not… provide the Court with license to read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence.”

Generally, the Court would prefer to find in favour of a valid Will rather than an intestacy.  When there is evidence to substantiate that correcting an error in form and/or execution would ensure that the deceased’s testamentary intentions are then able to be followed rather than an intestacy occurring, the Court may be inclined to consider validating a document purporting to be a Will (or Codicil) under Section 21.1.

 Mixed Results in 10 Cases

Ten cases to date show the pattern of mixed results with the Court inclined to assist with correcting errors most often where there is clear evidence that the correction would allow the deceased’s intention to come to fruition.  Each of these will be summarized briefly to demonstrate this pattern.

In Cruz v Public Guardian and Trustee[5], the deceased prepared his own Will and provided a copy to his estate trustee. However, he knowingly did not have the document witnessed and instructed his estate trustee to have it witnessed for him. Before the estate trustee could do so, the deceased passed away. Justice Myers found that, based on the facts before the Court, the purported Will was authentic, and it set out a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property. As a result, the Court deemed the document to be a valid Will.

In White v White[6], the Court dealt with an application for disclosure of a solicitor’s file with the hopes of subsequently bringing a Will challenge – rather than an outright application seeking validation of a purported Will under 21.1.  The deceased had consulted a lawyer to update her estate planning, but suffered a stroke on the morning of her appointment to execute a draft Will. The lawyer tried to attend with the deceased at the hospital after the stroke to deal with the draft Will, but the deceased turned away the lawyer. Shortly thereafter, the deceased passed away. Although he was not ruling on the validity of a draft Will, Justice Myers did express some reservations about whether Section 21.1 could be used to validate a draft Will on the facts of this case.  Justice Myers specifically stated that “[a] draft will is just a draft. It is common to see changes made as late as during the execution ceremony. The court frequently sees wills containing handwritten interlineations made just before a will is signed”. Justice Myers again indicated the importance of the purported document recording the fixed and final intentions of the testator.

In Vojska v Ostowski[7], the Court described this case as a “textbook example” of a case for which Section 21.1 was intended. Here, during six documents being passed back and forth for four signatures with a lawyer acting for a husband and wife to prepare estate planning documents, one signature on one document was missed. The lawyer did not sign the wife’s Will - every other document was signed by everyone involved. In analyzing the facts before him, Justice Myers found that the evidence of authenticity and testamentary intentions were clear, and that as a result, the wife’s Will to be valid and fully effective.

In Groskopf v Rogers et al[8], the deceased completed a fill-in-the-blank style document in her own handwriting. The document was signed, but not dated. There were two signature lines for witnesses, but no witness signatures were filled in. The alleged Will was found in a lock box in the deceased’s home along with other handwritten notes, including instructions to the proposed executor regarding the distribution of the deceased’s estate. There was also another document entitled “Estate Planning & Inventory” which was another fill-in-the-blanks form that the deceased made handwritten notes on. The brother of the deceased argued that the Will lacked the formalities to be considered valid and that Section 21.1 should not apply. Justice Hilliard ultimately decided that the document in question should be validated under Section 21.1 based on the evidence supporting the deceased’s intentions (and the lack of evidence supporting the brother’s position).

In Grattan v Gratta Estate[9], Justice Johnston validated an unsigned document prepared by a lawyer on the instructions of the deceased.  Adopting the approach of Courts in British Columbia and Manitoba, Justice Johnston found that the unsigned document represented the fixed and final intentions of the deceased and there was no evidence that she had changed her mind in the period between when instructions were provided and her death.  It is notable, however, that the intervening period in that case was a mere 15 days between when final instructions regarding changes were communicated to the lawyer and the death of the testator.

In Kertesz v. Kertesz[10], Justice Myers used Section 21.1 to validate a note written by the deceased as his Will. The note conveyed a fixed and final expression of the deceased’s intentions. The deceased understood the scope and nature of his assets. He also knew his death was imminent. Based on the circumstances, Justice Myers found that there was no doubt that the note was authentic.

In Estate of Harold Franklin Campbell (Re)[11], the Court found that Section 21.1 did not apply. This testator created a Will in 1996 after the death of his first spouse. He married his second spouse in 2000, and his Will was revoked due to Section 16 of the SLRA, which at the time revoked a Will upon marriage. The testator made two handwritten notes, one in 2016 and another in 2017 that he stapled to the 1996 Will.  The Court held that Section 21.1 cannot be used to read into a document or writing an intention to revoke, alter or revive a Will, however, under a different section (19(1)(b)) of the SLRA, the Court found that the Will was revived by the making of the 2016 Holograph Codicil.

In Salmon v Rombough[12], the deceased had executed a Will in 2012 and a document made in 2021. The 2021 document made significant amendments to the 2012 Will, however, the document was found to be authentic and supported the deceased’s testamentary intentions. It was also clear that the document and the 2012 Will were meant to be read together. Additionally, the Court found that had the deceased not died 15 days after the 2021 document was made, he likely would have taken that document to a lawyer’s office to amend his Will. The Court found that the deceased would not have wanted an intestacy and validated the 2021 document as a Codicil under Section 21.1.

In Marsden v Hunt et al[13], the deceased had executed a Will in 2019 and passed away in 2023. There were two witnesses to the execution of the 2019 Will, however, one document was missing a witness signature. The witness whose signature was missing swore an affidavit in support that she witnessed the testator sign the document. The affidavit was not challenged, and the Court ruled in favour of validating the 2019 Will under Section 21.1.

In Re: O’Neill Estate[14], the applicant, who was the brother of the deceased, asked the Court to validate a Will made by the deceased in March of 2023, approximately two months prior to her death. The applicant helped his sister make the Will which he saw her sign, but did not witness it as he was a named beneficiary. Two other individuals did sign the Will as “witnesses”, but did not actually see the deceased sign her name. Justice MacLeod found that the evidence supported a finding that the document contained the testamentary intentions of the deceased and as such, it was appropriate to make an Order under Section 21.1. Additionally, all beneficiaries except one consented to the Order, and the one that did not consent did not contest the Order either.

In Conclusion: Context is King

While the test for substantial compliance is not codified in the SLRA, in cases, the Courts explicitly and implicitly appear to be following Justice Myers’ two-part process.[15] First, determine whether the document in question is authentic.  Second, review the circumstances surrounding the creation and execution of the document in question to determine if a clear fixed and final intention can be found.  In this assessment, the Courts keep in mind that the party seeking to propound the document in question bears the burden of proving the authenticity of the document, as well as substantiating that it accurately expresses the testamentary wishes of the deceased.

In analyzing whether the substantial compliance provision applies in similar scenarios, keep in mind that Section 21.1 is a fact-driven analysis. In other words, context is king.

The option to correct errors in execution as of January 1, 2022 is already proven to be useful to avoid intestacy where there is good evidence that correcting the document would allow the deceased’s intentions to be implemented.   We look forward to continuing to watch this option develop as it is applied in coming years.  At Lerners, we have an estates litigation team that can assist with situations of estate planning documents that may not meet the required formalities of execution and look forward to continue to assist people to access this new fix.

[1] R.S.O. 1990, c. S.26, s. 3; R.S.O. 1990, c. S.26, s. 4; and, R.S.O. 1990, c. S.26, s. 7.

[2] So long as the deceased passed away on or after January 1, 2022; regardless of when the Will was executed.

[3] 2021, c. 4, Sched. 9, s. 5.

[4] 2024 ONSC 4315 at para 17.

[5] 2023 ONSC 3629 (CanLII).

[6] 2023 ONSC 3740 (CanLII).

[7] 2023 ONSC 3894 (CanLII).

[8] 2023 ONSC 5312 (CanLII).

[9] Unreported but referenced in Groskopf v. Rogers et al, 2023 ONSC 5312 (CanLII) at para 13.

[10] 2023 ONSC 7055 (CanLII).

[11] 2024 ONSC 4315 (CanLII).

[12] 2024 ONSC 1186 (CanLII).

[13] 2024 ONSC 1711 (CanLII).

[14] 2024 ONSC 2228 (CanLII).

[15] Which he originally cited from Justice Dickson in her decision in the Estate of Sharone Young, 2015 BCSC 182 (CanLII).