Substantial Compliance – Fixing a Defective Will After Death
Part 3
In the first 2 parts of this commentary on the Meyer case ( Part 1 and Part 2 ) which primarily discusses a surrogate signing a will, we saw how a “Probate” application failed. However when one looks at the case from a present day view point there is a further twist. As of January 1, 2022 ( 11 years after the Meyer case ) the law was changed on the formality of wills.
In this author’s view it became foolishly a game of horseshoes. A very expensive game of horseshoes. Referred to in the legal world as substantial compliance, the author refers to it as “close enough”. The Succession Law Reform Act (the primary but certainly not the only law governing wills ) at section 21.1(1) in essence states – If you can convince a judge that the document – which does not meet the requirements of the simple formalities for a will set out in the Act – and really they are not numerous – but can show that the defective document is what the Testator wanted his or her will to say – the judge can order that the document is a valid will. There are no Ontario decisions on the subject yet. But would the Will questionnaire completed by Mr. Meyer meet the new test? Of course Meyer was decided in 2011 and the law was changed 11 years later.
So in conclusion, there is a ready methodology of meeting the problem of physical limitations. However, the drafting lawyer needs to be careful to ensure that there is evidence, and that all the other factors set out in The Succession Law Reform Act are met. This is not a step to be taken by someone without a great deal of experience in the law of Wills and Estates.
