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Will challenges fundamentally changed post-Ontario Regulation 129/20

Thursday, March 09, 2023 @ 8:53 AM | By Charles Wagner

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Charles Wagner %>
Charles Wagner
Prior to the most recent changes to the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the SLRA), s. 4 of the statute necessitated “strict compliance” with the formalities requirements for the due execution of a will or codicil in Ontario. Subsection 4(1) reads:

4(1) Subject to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

The formalities of execution

Some provinces and territories have a validating provision in their SLRA equivalents which enable courts to grant probate for wills that have not strictly adhered to the formal requirements. Prior to April 22, 2020, neither Ontario’s SLRA nor its regulations contained any such provision.

However, on April 22, 2020, Ontario’s strict compliance regime was changed through the enactment of Ontario Regulation 129/20, which relaxed the formal requirements to better fit with health and safety protocols put in place to respond to the COVID-19 public health emergency. The relevant portions of the Regulation provide as follows:

“2(1) A requirement under the Succession Law Reform Act that a testator or witnesses be present or in each other’s presence for the making or acknowledgment of a signature on a will or for the subscribing of a will may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment or subscribing.

(2) If a will is executed with the assistance of audio-visual communication technology as authorized by subsection (1), the signatures or subscriptions required by the Succession Law Reform Act may be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.” [Emphasis added.]

As demonstrated by the decision in Swiddle Estate (Re), 2021 ONSC 1434 (Swiddle Estate (Re)), this exceptional approach to the due execution of a will involving virtual witnessing must be complied with strictly.

Swiddle Estate (Re)

In Swiddle Estate (Re), the testator attempted to execute a third codicil to her will on June 23, 2020 — after the enactment of Ontario Regulation 129/20. As the witnesses could not attend in person, they spoke with the testator on the phone while she reviewed and signed the codicil. The codicil was mailed to the witnesses the next day for their signatures. The testator’s daughters were present when the testator signed the codicil, and they signed it as well, apparently to indicate their consent with respect to its contents.

The court refused to grant probate to the codicil due to its noncompliance with the formal requirements outlined in the SLRA as well as in Ontario Regulation 129/20.3 The phone call was not found to meet the definition of “audio-visual communication technology” as per the regulation.

Swiddle Estate (Re) emphasizes the importance of carefully executing testamentary documents according to the formal requirements outlined in the legislation. While Ontario Regulation 129/20 may make it easier to comply with those formal requirements and s. 21.1 permits the courts to validate a will notwithstanding the will maker’s failure to fully comply with the formalities of execution, it is by no means an invitation to be lax about due execution. We recommend that solicitors still approach a will-signing ceremony with a view to both ensuring that the execution of the will is unimpeachable, and that evidence be created to document proper execution where the testator and witnesses are not physically present at the same time.

By Jan. 1, 2022, Ontario’s strict compliance regime was effectively converted into a substantial compliance regime through the enactment of s. 21.1 of the SLRA, which permits the courts to validate wills that do not meet the formalities of execution.

These changes to Ontario’s strict compliance regime are significant. It is a worthwhile endeavour for those estate planners and litigators to have a discussion, post Swiddle Estate (Re) and the changes to the SLRA and its regulations regarding whether and how the process for making a will, filing for probate and challenging a will has been fundamentally altered.

That discussion begins March 15, 2023, with the first seminar of a lunch and learn series on Will Challenges hosted by Wagner Sidlofsky LLP. The first two seminars, “Will-Making and Probate” on March 15, 2023, and “Grounds for Challenging a Will” on March 29, 2023, will be addressing the state of the law on these issues. The Zoom seminars are set up to promote discussion between counsel on the state of the law today and where it might be heading tomorrow. For more information and to register, please access this link.

Charles Wagner is designated as a certified specialist in estates and trusts law by the Law Society of Ontario and a partner at Wagner Sidlofsky LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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