Back in September we blogged about recent changes to estate law in Ontario. One of the more interesting changes was the introduction of the ability for the courts to “cure” invalid wills. Questions around the validity of a will due to administrative issues, such as the lack of a signature or witnesses’ signatures. Courts have now been given the authority to fix, or “cure” wills that might otherwise be found as invalid. In our September blog post we noted that it remained to be seen how far courts would go in fixing a will. A recent decision from British Columbia, sheds some light on what we might expect in Ontario.
Testator dies without having signed will
The testator had been preparing to visit her lawyer in March 2020 in order to sign a new will. However, the appointment was cancelled because COVID-19 had begun to shut down most parts of everyday life. In this case, the testator’s will was drafted, and all that remained was for it to be signed before two witnesses. Unfortunately, the testator died before she was able to sign the will.
Following the testator’s death, the lawyer who prepared her previous will (“JT”) challenged it. That will left her estate to her husband, and in the event that he predeceased her, left her estate to a charity. The new will stipulated that her estate be left to her nephew and his partner (“the beneficiaries”). They were the respondents in the matter. JT asked the court for direction as to whether the new will should be executed under the Wills, Estates and Succession Act. The beneficiaries submit that the will should stand, while the charity maintains the newest will was substantially invalid and cannot be cured under the Wills, Estate and Succession Act.
The requirements for a legal will
The court explained that the Wills, Estate and Succession Act sets out three requirements that must be met for a will to be valid. They are:
- The will is in writing
- The will is signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
- The will is signed by two or more witnesses in the presence of the will-maker
In this case, the will clearly did not meet the second or third requirements. Normally this would mean that the will cannot be executed. However, like in Ontario, BC’s Wills, Estate and Succession Act allows for courts to cure deficiencies of non-compliant wills.
The court began its analysis by determining that the will is indeed authentic. This was not at issue in the trial, so it quickly moved onto the writing of the will and the testator’s capacity at the time it was drafted. The court heard from the lawyer who drafted it. He said he had no question about capacity, noting she told him she “spoils” her nieces and nephews. He also told the court the testator instructed that “no charities” be included in her will.
Testator intended to sign her will
The court was satisfied that the will was written as per the testator’s instructions. She had every intention to sign the will but was prevented from doing so for reasons outside of her control.
The court heard evidence that the testator did not leave her home for any reason other than medical appointments once the pandemic was underway. In addition, the court was satisfied that the testator had taken the necessary steps to put the will into place in the weeks leading up to the pandemic and that she would have completed the last necessary steps had she been able to.
Because of this, the court found that the testator’s failure to execute the will does not undermine her testamentary intentions, and as such, the will should stand.
Contact Derfel Estate Law for matters related to will challenges
At Derfel Estate Law, our experienced estate lawyers regularly represent clients on all types of estate litigation, including the challenging of wills. Contact us by phone at 416-847-3580 or reach us online in the event that you are considering filing an application to challenge a will. Our team will help you determine whether you are eligible to bring such a claim.