Is it Good Enough? Substantial Compliance for Wills in Ontario

On January 1, 2022, Ontario made a major change to how wills are treated under the Succession Law Reform Act (SLRA). The changes to the SLRA allowed Ontario to move away from strict compliance for wills and to a more flexible approach known as substantial compliance. Up until that point, if a will did not adhere to the strict rules of compliance, the court could declare the will invalid. This rigid approach to validating wills, often led to disappointed beneficiaries and costly litigation. This change to the law is intended to help ensure that a person’s true intentions are respected, even if their will does not strictly meet every formal requirement. At Derfel Estates Law, we recognize how important this shift is for families navigating estate matters in Ontario.

What Is Substantial Compliance?

Thanks to this amendment, the court can now declare that a will, or a document that appears to be a will to be valid even if it does not meet all the technical formalities. Although strict compliance may not be required, there still is criterial that needs to be met. To be upheld, the court must be satisfied that:
  1. The document is authentic, and
  2. It reflects the testator’s fixed and final testamentary intentions.
This means that mistakes such as a missing witness signature or a failure to properly follow formalities may no longer automatically invalidate a will.

Why the Change Matters

The adoption of substantial compliance addresses many long-standing challenges in estate law. Rather than focusing on technical compliance, the court can now respect the testamentary wishes of a deceased. In other words, the court can now focus on what the deceased truly intended. The change also prevents unintended intestacy. Before the amendment, if a will was declared invalid for technical reasons, the result would then be an intestacy or probating a previous will. Most importantly, the change improves access to justice. Not everyone has access to or can afford formal estate planning. The result of the change is a more equitable approach to how estates are handled regardless of the means or abilities of the deceased.

When Could a Court Qualify a Will Under Substantial Compliance?

  1. Unsigned or improperly witnessed wills, provided the testator’s intent is otherwise clear
  2. Handwritten notes or codicils, provided they show fixed, final instructions
  3. Wills with defective witnessing, such as where witnesses were not present together
  4. Draft wills that are close to completion, provided there is strong evidence the testator approved the final version
However, not every document will pass. Drafts, notes, or emails without clear evidence of intent are usually not enough.

Why a Properly Drafted Will Still Matters

Substantial compliance is a last measure. It is not a substitute for a properly executed will. Relying on the courts to fix mistakes is expensive and risky and could lead to one or more of the following:
  1. Expensive litigation
  2. Delays distribution of the proceeds of the estate
  3. Family conflict and emotional strain
  4. Uncertainty because the courts may still refuse to validate a document
The best way to protect your heirs is to ensure your will is properly drafted and executed with professional legal guidance. This prevents costly, stressful disputes and ensures your wishes are carried out smoothly.

Frequently Asked Questions

  1. What is “substantial compliance” in Ontario wills law?: It allows courts to validate a will even if formal execution requirements were not followed, as long as the document reflects the deceased’s true intentions.
  2. When did substantial compliance become law?: It came into effect on January 1, 2022.
  3. What types of mistakes can be cured?: Missing witness signatures, improperly witnessed wills, or handwritten codicils may be validated if they reflect testamentary intent.
  4. Can electronic or video wills be validated?: No. Substantial compliance applies only to written documents.
  5. Does this mean I don’t need a lawyer for my will?: No. A professionally drafted will remains the best protection. Substantial compliance is a last chance remedy.
  6. What happens if a will isn’t validated?: The estate may be intestate or previous could be upheld intestacy, likely not reflecting the deceased’s wishes.
This blog is provided for general informational purposes only and does not constitute legal advice. Every estate and every will are unique, and no two situations are exactly alike. If you have questions about how substantial compliance may apply to your circumstances, contact Derfel Estates Law for advice tailored to your situation.