July 1, 2025
We have written about rectification, the equitable remedy that may solve certain problems caused by errors in wills.
There is a similar recently added provision in the Succession Law Reform Act which allows a court to find that a will is valid even where there are technical issues which result in the will not being properly executed or made under the Act.
This provision came into effect in 2021 and applies to wills made before or after the section came into force.
There are now enough cases decided that we can give examples which illustrate the range of this provision:
(a) Cruz v. Public Guardian and Trustee, 2023 ONSC 3629: the deceased prepared his own Will and signed it, but failed to have it witnessed contemporaneously. No lawyer was involved.
(b) Vojska v. Ostrowski, 2023 ONSC 3894: the deceased signed her Will at the office of the drafting lawyer, but one of two witness signatures was inadvertently omitted.
(c) Groskopf v. Rogers et al., 2023 ONSC 5312: the deceased, by hand, completed and signed a stationer’s printed form Will, but did not have it witnessed. No lawyer was involved.
(d) Kertesz v. Kertesz, 2023 ONSC 7055: the deceased hand-wrote a lengthy document, but did not sign it. No lawyer was involved.
(e) Salmon v. Rombough, 2024 ONSC 1186: the deceased signed, but did not have witnessed, a document made up of his both own handwriting and photocopied-and-pasted sections of a prior printed Will. No lawyer was involved.
(f) Marsden v. Hunt et al., 2024 ONSC 1711: the deceased signed a Will drafted by a lawyer, but one of two witness signatures was inadvertently omitted.
(g) Re: O’Neill Estate, 2024 ONSC 2228: the deceased prepared her own Will and signed it in the presence of others, but none of them subscribed as witnesses. No lawyer was involved.
(h) Allan et al. v. Thunder Bay Regional et a., 2024 ONSC 3260: the deceased hand-wrote a codicil but failed to sign it. No lawyer was involved.
(i) Hejno v. Hejno, lower court decision unreported, Court of Appeal motion for extension of time to appeal at 2025 ONCA 249: the court validated draft Wills that had been drafted by a lawyer, although certain pages appear to have been slip- sheeted; the nature of the deficiency in formality of execution is not specified. No written reasons were provided by the lower court.
(j) Grattan v. Grattan, unreported: the deceased was sent a draft Will digitally by her lawyer. She sent the draft back in the same digital format with alterations, such as spelling corrections. The lawyer promised to make the necessary corrections. The deceased failed to schedule a signing appointment before her death 15 days later. (Notably, the court did not refer to section 21.1(2) of the SLRA in its decision; that section would appear to have prohibited the validation of a digital-only document.)[2]
[quoted from Allison v. McBride, a case in which it was found that the “wills exception” to solicitor-client privilege does not apply in cases under this section]
This list does not include cases where validation was not granted. It does suggest, in our opinion, that courts take a broad interpretation of situations in which a will ought to be validated. It does not extend to fixing errors within a validly executed will. Rectification may still be available to fix that.
TAKEAWAYS
- Ontario courts will be generous in validating wills, even homemade wills, where the intent is clear.
- The Court must be satisfied that the document shows a fixed and final intention and is not just merely a preliminary draft.
- Digital documents may not be validated.
- It is still better where possible to have a will properly executed in a lawyer’s office.
- Doing it right in the first place is much cheaper than an application to validate.
WHAT WEILERS LLP CAN DO TO HELP YOU
When drafting wills, individual care is taken to ensure your true wishes are understood and set out. Wherever possible, we provide a draft for careful review prior to the signing meeting. The signing meeting provides a further opportunity to ask questions and satisfy yourself that the legal effect is what you intend. Having a will prepared in our office offers assurance that the will is valid.
Our experience in estate litigation makes us an excellent choice to apply to validate a will in court.
If you have any questions about validation of wills, or wills generally, give us a call. We might be the right lawyers for you.