A number of other Provinces have substantial compliance laws. In other words, a Judge, after the fact and after the maker of the Will – the testator – has passed away, the ability to fix errors in the Will. I am not speaking of the process of rectification that is discussed in another blog. A prime example of rectification is when the client told the lawyer to include something in the Will and solely as a result of the error of the lawyer, that provision was not made. Under those circumstances, the court may rectify that error.
The substantial compliance provision that we are discussing now is remedying an error in the formal process. The court will be given the power once the Accelerating Access to Justice Act receives royal proclamation, which is not likely to occur until 2022, to declare a Will to be valid even though some formalities were not observed. An example would be if only one witness signed or if the witness simply printed their name and forgot to attach their signature. In those circumstances, the persons putting forward the Will can ask the court to declare the Will as being valid so long as the court believes that the Will does accurately set out the testamentary intention of the deceased. Again, in plain English, the concept is that there may have been a slight formal “screwup”, but this document put forward as a Will indeed does accurately reflect what the maker of the Will meant it to say. Please note that the absence of a wet signature, in other words, pen actually hitting paper, is not an error that can be remedied under this proposed provision. Also this will not be a retroactive law. In other words, whenever the law receives royal proclamation, it only applies to Wills made after that date.