Jul 7, 2023
Before January 1, 2022, Ontario courts would only consider a Will valid if the Will complied with the strict, technical formalities set out in the Succession Law Reform Act. For example, under the SLRA, a Will was only considered valid if the Will was in writing, if it was signed by the testator at the end of the document, and if it was witnessed by two or more people.
However, with the recent addition of section 21.1(1) to the SLRA, even Wills that don’t meet those formal requirements may be considered valid, as long as the court is satisfied that the document “sets out the testamentary intentions of a deceased”. This means the court now has the power to order that a document is as valid and as effective as a Will, even if it does not meet the requirements of a Will. This new section of the SLRA applies to Wills of people who died after January 1, 2022.
For a while, we didn’t have many examples of people relying on section 21.1(1). Now, however, we are starting to see the court interpreting section 21.1(1) in some recent decisions.
As expected, the court has relied on cases from other provinces that already introduced provisions similar to section 21.1(1) of the SRLA. In a series of recent decisions from the Ontario Superior Court from June 2023, the court found that even when a Will wasn’t witnessed at all or signed by the testator, the Will was valid because it recorded a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.” If it is clear from the facts and evidence that the deceased intended the document to be a proper Will, it seems like the Ontario court will have little difficulty finding the document to be a valid Will.
In these first few cases interpreting section 21.1(1) of the SLRA, all the documents validated as Wills looked very much like a proper Will, but for a few key issues, like missing signatures. Only time will tell how far the court will go to validate documents that may set out someone’s testamentary intentions, but that stray even farther from the technical requirements of a Will.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 19, 2023
Half of Canadians don’t have a Will. Many people think that only the ultra-wealthy would need an official document to distribute their assets after death. However, there are several reasons to talk to a lawyer about making a Will, regardless of how much your estate is worth.
You’re In Charge
A Will gives you the flexibility to decide where your belongings go after your death. Without one, you will die intestate. This means your spouse and/or children will likely receive everything.
Even if this was the plan all along, you probably have a few things you want to go to someone else after you pass away. You might want your favourite guitar to go to your bandmates, or your shoe collection to be donated to the Salvation Army. Without a Will, your loved ones will be left to sort through all your things and piece together where you would have wanted them to go.
Children
One of the main benefits of making a Will is to cement who will care for your children after you pass away. Having a document that names the trusted friend or family member of your choosing will help you rest easy knowing your children will be taken care of no matter what.
Pets
Wills can have special provisions for pets. You can set out who you would like your pet to live with after you die and you can even name a substitute person if your first choice is unable to care for them. This will greatly minimize the chances your pet ends up in a shelter. In addition, if you wish to set aside some money to care for your pet, your lawyer can help you set up a pet trust for the person taking your furry friend after you pass away.
Funeral and Burial
A Will is one of the best places to express your funeral and burial wishes. This can be a huge help to your loved ones, who can spend time grieving rather than deciding what you would have wanted.
How Do I Make A Will?
It’s always best to get help from a lawyer you trust when drafting a document as important as a Will. You might need some complicated provisions that only someone with years of experience would know about.
Making a Will is an easy way to ensure those you care about are provided for and have all the tools they need to take care of things after you die.
Colleen Dowling
Colleen has joined Casey & Moss as our summer student and will be returning as our articling student in 2024. She is an incoming third-year law student at Queen’s University. Her interest in Estate Litigation began while working as a caseworker at the Queen’s Elder Law clinic where she drafted Wills and Powers of Attorney for seniors who would otherwise have difficulty affording legal counsel. She is greatly looking forward to returning to the firm to complete her articles.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
