Date: 20 Dec, 2021| Author: Fred Streiman

Until now, it has been easy to ignore court decisions that have emanated from British Columbia. British Columbia’s law of substantial compliance was so different than Ontario’s that those cases had no meaning here. However, with the sweeping changes coming as of January 1, 2022, the decisions being made in British Columbia are important for Ontario lawyers and persons making their Wills here.

In the 2021 British Columbia Supreme Court decision Wolk and Wolk, a person who was in a recovery program for severe substance abuse made a Will in which he benefitted his parents dramatically. His Will was signed by the testator/willmaker, his parents, and one other witness. Of course in British Columbia as in Ontario, a Will needs to be witnessed by two persons neither of whom are receiving any benefit under the Will. Clearly, that rule was breached in this case.

Up until January 1, 2022, in Ontario that would have been the end of the matter. The law was black and white and if you did not follow the few formalities required under the Succession Law Reform Act, the Will was invalid. The simple solution was to use the services of a lawyer. If the lawyer screwed up, the lawyer’s insurance company would compensate the party that lost out.

Ontario’s new laws, which on their surface appears to be far more sympathetic to correcting these type of errors, will permit long-drawn-out court cases and the prohibitively expensive legal fees that accompanies them to determine whether or not the imperfect Will really is an accurate reflection of the intention of the willmaker.

The specific facts of the Wolk case are not particularly relevant. There was a significant amount of outside evidence that the willmaker truly did wish his parents to benefit and the court validated the Will.

My point is that out of an apparent effort to reform the law, this author believes it is a gigantic step backward. It moves will creation from certainty to uncertainty. From the modest expense of a lawyer drafting a Will properly the first time to the huge expense of having a court case and the associated legal fees being incurred. The behavior of people not using the services of a lawyer is being rewarded. This is not a diatribe in favor of lawyers making money by preparing Wills. I can assure everyone that the legal fees of a court case are many orders of magnitude greater than the modest amount that lawyers generally charge for the drafting of Wills.

The estate bar, that is those lawyers that specialize in this area, are looking forward to the additional work coming our way as a result of this misguided reform.