Gale Law, Toronto
By Kim Gale and Kiran Sanghera
November 22nd, 2024
Imagine being able to prove that a handwritten note in your notebook could be your last will and testament.
That is exactly what the newest Ontario concept in estates law, “substantial compliance,” strives to do. While it is a fairly new concept in the estates world, estate litigators ought to be aware of the prevalence of its existence.
Substantial compliance can be found under s. 21.1 of the Succession Law Reform Act (SLRA). It came into effect at the beginning of 2022.
Since then, there have been few cases where it has been successful. Prior to its existence, Ontario operated under a strict compliance regime in which there was little room for ambiguity. Under this regime, a document was considered to be a valid last will and testament if the document was signed by the testator, the testator’s signature was made in the presence of two non-familial witnesses and the said witnesses also signed the will in the presence of the testator.
Substantial compliance provides more flexibility. Under the substantial compliance regime, the court can validate a document to be fully effective as a last will and testament even if it is not properly executed in accordance with the SLRA but does set out the full and final testamentary intentions of the deceased.
What is the difference between substantial compliance and holograph will?
Similar to that of a holographic will, the document may be handwritten and signed by the testator. However, with the new inception of substantial compliance, a document can be handwritten or typed and not signed by the testator or even witnessed. A holograph will is different from that of a document validated under s. 21.1. A holograph will is in the handwriting of the testator as well as signed by the testator and need not be witnessed. Under s. 21.1, a document may be handwritten or by electronic means (i.e. typed) and validated as a will if the document in question sets out the full and final testamentary intentions of the deceased.
