Substantially compliant

This article is republished with permission from STEP Journal. Brian E Cohen and Maddi Thomas, “Substantially compliant,” STEP Journal (Issue 3, 2025).

What is the issue?

The introduction of ‘substantial compliance’ under s21.1 of the Succession Law Reform Act permits Ontario courts to validate wills that do not meet strict legislative formalities, if the document is authentic and clearly reflects the deceased’s final intentions.

What does it mean for me?

This doctrine offers reassurance to estate planners, as even wills with small technical errors may still be considered valid. However, as case law is developing quickly in this area, there is no guarantee that a court will find a will or codicil to be valid if it does not meet the legislative requirements.

What can I take away?

Properly executing a will remains crucial to avoid unnecessary court applications and to ensure the deceased’s testamentary intentions are valid.

The introduction, in 2022, of ‘substantial compliance’ into Ontario’s Succession Law Reform Act(the SLRA) has increased the viability and acceptance of non-compliant wills by way of court application.^[1]This shift has allowed Ontario courts to be more lenient in accepting technically non-compliant wills, including handwritten or ‘holographic’ wills.^[2]Recent Ontario jurisprudence has expanded the definition of what may pass as a substantially compliant will, straying from previously decided open and shut cases. Notably, substantial compliance only applies if the testator died after 1 January 2022.^[3]

Court-ordered validity

Under s.21.1 of the SLRA, the Ontario Superior Court of Justice (the Court) may order that a document or writing, even if not properly executed, is valid if it clearly sets out the testamentary intentions of the deceased or any intention to revoke, alter or revive a will.

It will be considered fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.^[4]

This doctrine is not new; British Columbia introduced substantial compliance to its Wills, Estates and Succession Act in 2014. Based on influential interprovincial precedent and nascent Ontario case law, Ontario courts have interpreted the two-part test for section 21.1 of the SLRA as follows, per Marsden v Hunt et al:^[5]

‘First, is the document authentic? In this respect, “absent any concerns about the validity of her signature, the document can be accepted as authentic, and even the complete absence of witnesses can be overlooked” ... ^[6] Second, does the document set out the testamentary intentions of the deceased? “... [F]or a document to set out the testamentary intentions of the deceased, the document must reflect a ‘fixed and final intention’ as to the disposal of their property on death”.’^[7]

The test must be satisfied on a balance of probabilities.^[8] Prior to the introduction of s.21.1, Ontario operated under a strict compliance regime, wherein a will was only considered valid if it met the formal requirements outlined in the SLRA: in writing and signed by the testator in front of two independent witnesses over the age of 18. There were some exceptions for holographic wills under s.6 of the SLRA, which prescribed that:

‘[a] testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness’.

How the concept of substantial compliance has altered Ontario case law

Since 2022, only a handful of cases have dealt with substantial compliance in Ontario. Cruz v Public Guardian and Trustee^[9] was the first Ontario case to interpret s.21.1. The Court found that the testator’s will was substantially compliant, despite it not being witnessed. The testator had provided the will in a sealed envelope to his intended executor, asking for it to be witnessed, although the note was not found until after the testator’s death. The Court found that there was ‘clear and convincing’ proof that the testator had drafted his own will. Justice Myers commented that ‘[i]t purports to be a will. It is signed in the deceased's hand. The deceased just blew the formalities. Fixing this type of mistake is precisely what s. 21.1 seems to be for’.

Substantial compliance provides flexibility by allowing the Court to consider and accept testamentary wills and codicils that reflect the deceased’s wishes but do not formally comply with the requirements prescribed in the SLRA.

Similarly, in Re: O'Neill Estate,^[10] the Court validated a will where two individuals signed as witnesses, although they had not actually seen the deceased sign her will. In Vojska v Ostrowski,^[11] the Court upheld a will where one witness signature was missing. Myers J noted that ‘[i't is hard to imagine a more textbook example of a case for which the new power to validate was intended’. A similar ruling was made in Marsden.^[12]

In Groskopf v Rogers et al^[13] the Court accepted a partially handwritten, partially ‘fill-in-the-blank’ style will as valid under the s.21.1 test. There were two compliance issues with the will. First, it was not witnessed and therefore not strictly compliant. Second, it did not properly qualify as a holograph will as it was not wholly in the testator’s handwriting; he used a ‘fill-in-the-blank’ style template. The will was challenged by the deceased’s brother, who had been estranged from the deceased but had reconciled with her in the years before her death. The Court determined that the fact that the testator had reconciled with her brother, and spoke of adding him to a new will, was not relevant for the purposes of determining whether the holographic will was valid. At the time the will was signed, it represented the deceased’s fixed and final testamentary intentions.

Cases like Re: Lacroix Estate,^[14] that predate the introduction of s.21.1 of the SLRA, demonstrate how it could have altered past rulings. In this case, the deceased executed a will in the hospital during the COVID-19 pandemic, without her solicitor, due to the pandemic restrictions. Following her solicitor’s instructions, the deceased prepared and executed a one-sentence, handwritten document, declaring it to be her last will and testament, and incorporating a typewritten draft will, each page of which she had initialed for identification purposes. The document was not witnessed. The Court found that this ‘will’ could not stand alone as a valid testamentary document because it did not independently make any disposition of property, as required by the SLRA, and a holographic will could not incorporate a typewritten document. Had substantial compliance been in place, the document would likely have been accepted.

Case law

Generally speaking, and for good reason, draft wills are still not acceptable under s.21.1. In White v White,^[15] the Court opined on s.9(1) of the Estates Act,^[16] which assists beneficiaries with finding a deceased person’s will. The son of the deceased wanted to submit a draft will prepared by a lawyer to the Court as a valid will under s.21.1. The deceased had had initial conversations with a lawyer, and a draft had been started, but the draft had not been signed before the deceased passed. The Court did not rule explicitly on substantial compliance but commented that a draft will was unlikely to have met the requirement of ‘a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death’. Applying s.9(1) of the Estates Act ‘to a document that one hopes might qualify as a will-equivalent under s.21.1’ would inappropriately broaden the reach of s.9(1).

In Salmon v Rombough,^[17] a notebook dated 31 December 2021 found after the deceased’s death, containing cut and paste sections of their valid 2012 will with the deceased’s handwritten notes adding various provisions, was deemed a valid codicil, as it embodied the deceased’s full and final testamentary intentions.

Similarly, in Allan et al v Thunder Bay Regional et al^[18] the deceased properly executed a will, which was drafted with the assistance of a lawyer. A holograph codicil, changing the executor and adding a charitable bequest, was appended to the will, in the testator’s handwriting, dated, with the deceased’s name and address listed but unsigned. The Court deemed the codicil to be valid as it was clearly intended to amend the deceased’s will: it was stored with the original will and the word codicil was written at the top of the document.^[19]

Interestingly, in Haines v Kuffner Estate^[20] the Saskatchewan King's Bench deemed an iPad message entitled ‘my holographic will’ to be substantially compliant as it clearly represented the deceased’s testamentary intention. The message named the deceased’s executor and directed the distribution of her estate. The deceased was also aware that her death was imminent. In Ontario, this testamentary document would not have been accepted, as substantial compliance does not apply to electronic documents.^[21]

Conclusion

Substantial compliance provides flexibility by allowing the Court to consider and accept testamentary wills and codicils that reflect the deceased’s wishes but do not formally comply with the requirements prescribed in the SLRA. This flexibility reduces instances of intestacy and increases access for individuals unable to afford legal services. However, this greater leniency also removes certain safeguards that serve to protect a deceased person’s testamentary wishes.

Ultimately, while substantial compliance has been a welcome introduction to the SLRA, it is crucial to maintain strict standards of validity and accuracy when determining the legitimacy of a will, especially a holograph one. Ontario courts have so far done a good job of maintaining these protections and placing limits on how far substantial compliance can go: draft wills, for example, have not been accepted unless they are final drafts. It will be interesting to monitor how the jurisprudence and resulting legislation in this area develops in the coming years.

---

© 2025 STEP (Society of Trust and Estate Practitioners). All rights in and relating to the STEP Journal and Trust Quarterly Review and to content online at journal.step.org are expressly reserved.