In our blog article titled “Revolutionary Changes in the Laws Regarding Wills in Ontario – Part 2, How to Fix a Will After Death”, we already touched upon the dramatic changes that are coming to the law of Wills as of January 1st, 2022. More changes are coming as of that date than have been made in the last 50 years. One major change is bringing Ontario in line with the majority of Canadian provinces. If a person dies after January 1st, 2022, irrespective of the date of the Will, the court will have the ability to fix mistakes made within that Will.
The intention is to ensure that a person’s last Will is not defeated by a clerical or unintentional error. Section 21.1 of the Accelerating Access to Justice Act reads as follows (abridged) “if the court is satisfied that a document was not properly signed or made in accordance with the Succession Law Reform Act, but it sets out the testamentary intentions of the deceased or the intention of the deceased to cancel, change or to revive a will of the deceased, the court may order that the document is valid and fully effective as if it had been properly signed or made”.
Simply put, if a judge is convinced that the document really is a will but is missing some technical or minor point, the judge may fix it after the death of the Testator aka the Willmaker.
The Act specifically excludes electronic Wills and insists upon what is referred to as “wet signatures”. In other words, a digital signature or one made online is simply not valid.
This is law in almost every Province across the country, and they can all be summarized under one phrase which is “that the document in question demonstrates the deceased’s deliberate and final testamentary intentions”. This question puts in sharp contrast the difference between a person’s last wishes and their intention to actually create a Will. Not everything that a person says or writes is actually an intention to create a Will. There are many cases across the country holding that it is possible to communicate your final intention without intending to make that statement to be the equivalent of a Will. No doubt this will open a gigantic area of more litigation and court discretion, which will need a great deal of judicial fleshing out. I tip my hat to the authors of the learned article in the 2021 24th Estates and Trusts Summary Summit, co-authored by Anne Posno and Mari Golloway in which they summarize the law of substantial compliance with the formalities of Will creation across the country.
We may regret these flood gates being opened. How hard is it to just meet the simple formalities of the SLRA? If you use a lawyer, who is likely losing money preparing the will, and he or she screws up, they have insurance. Are we not encouraging people to try their hand at doing a will themselves and incurring insane legal fees to determine if their scribblings are or are not a will? Be assured, no lawyer will do that work for free or at a loss.
