Oops, I Blew the Formalities: A summary of cases to date on the Court’s validating powers under s. 21.1 of the SLRA

As most estate practitioners are aware, up until January of 2022, there was no way of saving testamentary documents that failed to meet the formal requirements set out in the Succession Law Reform Act ("SLRA"). Bill 245, passed in 2021, added section 21.1 to the SLRA, which provided a validating power to judges of the Superior Court to remedy situations where the formalities of execution had not been met.  The section, which only applies where the testator has died on or after January 1, 2022, states as follows:

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made. [1]
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The first decision that came out, the unreported case of Grattan v. Grattan, created quite a stir, when an unsigned, electronic draft of a will was validated by the Court[2].  In his reasons, the judge adopted the Manitoba and British Columbia approach to will validation, stating that the document reflected the deceased's "fixed and final intentions". Estate practitioners voiced numerous concerns about the decision, including that the document had not been signed in any way by the testator, that draft documents are frequently amended at the time of execution and witnessing, and that the changes were not in the testator’s handwriting, but rather had been made using software on her computer.  With respect to the last point, it must be noted that s. 21.1 is not available for the validation of electronic documents[3]; based on the decision, it did not appear that this issue had been raised or analysed.

In a trio of decisions in June of this year, Justice Myers set out various principles that will likely be applied to future cases. 

In Cruz v Public Guardian and Trustee,[4] the deceased had prepared a typewritten document that was drafted as a will and signed it, unfortunately without having two people act as witnesses to his signature, as required by the SLRA.  He provided it to his chosen estate trustee in a covered envelope, with a note inside the envelope requesting that the will be witnessed.  In validating the will, Justice Myers confirmed that the will was signed by the deceased; that it set out a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death; and that the will appeared to be authentic, in that it had been handed to the estate trustee by the deceased, and had then remained in the estate trustee’s possession until after death.  In the decision, Justice Myers emphasized that the standard of proof is a balance of probabilities, despite case law from Western provinces that appears to set a higher standard of proof.

In White v White[5], which was an application for directions, the applicant sought production of the deceased's lawyer's file to determine whether the lawyer had notes that could be considered a draft will and whether the alleged draft will could be validated under section 21.1 of the SLRA.  Justice Myers indicated his doubt that a draft will could ever meet the threshold of a "deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death". He stated:

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.[6]

Notably, Justice Myers did not reference the Grattan decision, perhaps as an unspoken comment on its application to future cases. 

In Vojska v. Ostrowski[7], the deceased and her husband had retained a lawyer to prepare wills and powers of attorney.  In the course of signing these documents, the subscription by the lawyer, as a witness, was inadvertently missed on the deceased’s will.  Justice Myers concluded that this scenario represented a textbook example of why section 21.1 was enacted.  Referencing his decision in Cruz, he indicated that the will was clearly an authentic document, that it reflected a deliberate or fixed and final expression of the deceased's intention as to the disposal of her property upon death, and that it was the lack of diligence by the lawyer that caused the error.[8]   

Justice Myers also reiterated the policy reasons for the formal requirements under the SLRA, namely that “[they] give strong assurance that the document used later is the right document” and that they give a “solemnity to the occasion to bring home to the deceased that she is doing something very significant.”[9]

In the July decision of Estate of Harold Franklin Campbell (Re)[10], the applicant sought to use section 21.1 to revive a will that had been automatically revoked upon the deceased's marriage in 2000.  The deceased had prepared and signed two notes in 2016 and 2017, to which he had stapled his former will, and which purported to explain how the will would operate. The court agreed that these notes were codicils that revived the will, but refused to apply section 21.1 to do so. The court stated that section 21.1 does not provide the court “a license to read into testamentary documents or writings intentions that are not expressly written in the documents or clearly inferable from admissible extrinsic evidence.”[11]

The most recent decision, the case of Groskopf v. Rogers et al,[12]  involved a contested application to validate a document under s. 21.1.  The document at issue was prepared in 2004 by the deceased in a fill-in-blanks style, and had been signed, but not witnessed.  In validating the will, the court held that the document did not appear to be a draft, and that in the deceased's other estate planning documents, she had confirmed that she had made a will and referenced the specific location in which the document had been found, therefore supporting the inference that she believed it to be her will. 

Cases under s. 21.1 will continue to be heard by the Court, with each decision building on prior decisions.  However, this early case law demonstrates the court's willingness to validate a will where the impugned document is authentic, intended as the deceased's final expression of intention as to the disposal of her property on death, and, by error or inadvertence, fails to comply with section 4(2) of the SLRA.  The court has not yet heard significant debate on how section 21.1 might apply when the document's authenticity or deceased's intentions are squarely in issue. Accordingly, it will be important to follow the development of the case law in this area to understand how broadly section 21.1 might be applied.

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