Can Ontario’s New Estate Laws Hurt You?
Henry signs his will and puts it into a sealed envelope. He includes a note to his executor, Nina. Henry’s note tells Nina to have the will witnessed. But by the time the envelope is opened, Henry has died. It is too late to have Henry’s signature witnessed.
Because Henry’s will is not witnessed, it did not comply with all of Ontario’s formal legal requirements to make wills valid. As a result, the government’s intestate rules decide how Henry’s estate is distributed to his next of kin.
Intestate is Another Word for Dying without a Will
This leaves your loved ones without a clue about what to do. Henry has no say about who will be in charge of his estate and who shares in his property. The government’s intestate rules do not allow for any tax reduction or charitable bequests. There is no flexibility or options.
In intestate estates, no one is in charge until someone is appointed by a court. Can you imagine who gets appointed to be in charge when there are five siblings who each hire lawyers?
Henry’s next-of-kin would inherit his estate. This is regardless of what Henry wanted or wrote in the will he signed.
Ontario is Now a Substantial Compliance Jurisdiction
Ontario was a strict compliance jurisdiction. I said was as in the past tense. Ontario became like many other provinces in Canada – a substantial compliance jurisdiction. This happened on January 1, 2022. Let me explain.
What does that mean for Henry who died after January 1, 2022?
As a result of section 21.1 of the Succession Law Reform Act, the estate laws changed in Ontario. Now, like in many other provinces, Ontario judges can recognize certain defective documents as valid wills.
Someone Must Still Go to Court
If a Superior Court Judge on an application is satisfied that a document sets out a person’s testamentary intentions, the court may validate the document. That means judges can order a document to be a will as if it had been properly made. Henry’s will in the sealed envelope expressed Henry’s intentions to deal with this property on his death.
Henry’s will in the sealed envelope expressed his intention to deal with this property on death. Henry signed his will and even named an estate executor in his will. He did not intend to die intestate or without a will.
A case similar to Henry’s is reported in a 2023 Ontario court decision. A judge validated such a signed will. It was found in a sealed envelope without witnesses but was treated as valid.
It was the right decision. I agree with the judge. The document in the sealed envelope was intended to be a final testamentary disposition and was correctly validated by the judge.
What are the unintended consequences that can follow from substantial compliance replacing a strict compliance rule for wills?
Here’s an example of my concern. Thomas never married and had no children. Thomas had a lawyer-prepared will where he left everything to charity.
Must All Handwritten Notes Be Reviewed?
While Thomas was in hospital, his neighbours brought him a fruit basket. Thomas wanted to thank his neighbours.
What if Thomas scribbles in his notebook that he wants to change his will to add his neighbours? Are Thomas’ notebook scribblings a valid change to his lawyer prepared will? Must Thomas’ executor search for all of Thomas’ handwritten notes?
What if Thomas was on pain medication and suffering from hallucinations? These are some of the changes that could lead to legal disputes.
Estate law is all I do.Posted In: Estates, Executors On: November 13th, 2023