Development of jurisprudence on section 21.1 of the Succession Law Reform Act, R.S.O. 1990, c.s. 26
Having come into force on January 1, 2022, section 21.1 of the Succession Law Reform Act (“SLRA”) provides a validating power to judges of the Superior Court of Justice where a testamentary instruction fails to comply with the SLRA’s prescribed formalities of execution. The section applies where the testator has died on or after January 1, 2022 and provides as follows:
21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and 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.
It is worth noting at the outset that the Ontario legislation limits instrument capable of being validated under section 21.1 to those in writing. The only Canadian province that recognizes digitally stored testamentary instruments at present is British Columbia. Pursuant to section 58 of the Wills, Estates, and Succession Act, SBC 2009 c.13, a British Columbia court may order that an electronic record be fully effective as a will even if the record fails to comply with the formalities of execution prescribed by that act. In Ontario, however, non-compliant testamentary documents must be in writing pursuant to subsection 21.1(2) of the SLRA and subsection 31(1) of the Electronic Commerce Act, 2000, S.O. 2000, c.17.
Many estate practitioners, in Ontario and elsewhere, have waited with bated breath for judicial interpretation of section 21.1. With the passage of time, there now exist a body of Superior Court judgments and endorsements where this new provision was considered.
In the recent case of Marsden v. Hunt et al, 2024 ONSC 1711, the Honourable Justice Faieta set out a two-part test for the application of section 21.1:
- Is the document authentic? His Honour referred to paragraph 14 of McCarthy Estate (Re), 2021 ABCA 403, quoting: “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”; and;
- Second, does the document set out the “testamentary intentions” of the deceased?
On the “testamentary intentions” arm of the test, Justice Faieta relied on authorities from the Manitoba Court of Appeal and the Supreme Court of Canada to observe:
- The document must reflect a “fixed and final intention” as to the disposal of the testator’s property on death; and
- The document may fail under the second arm of the test if it does not show a present intention to dispose of property on death. For instance, a testatrix may write a letter to her lawyer discussing the provisions she would like to include in her will. Depending on the language used and the testatrix’s communications and interactions with her lawyer after its delivery, the letter may nonetheless be read as failing to embody her testamentary intentions.
In Marsden, the non-compliant will was missing the signature of one of the two witnesses. The witness who failed to sign at the time of execution was a law clerk of the law firm that drafted the will. She swore an affidavit confirming that the testator signed the will and that she witnessed its execution. In all other respects, the will appear to duly comply with the formalities of execution prescribed by the SLRA. The Honourable Justice was satisfied that both arms of test were met and declared the will to be valid pursuant to section 21.1 of the SLRA.
The decision of the Honourable Justice Chang in Estate of Franklin Harold Campbell (Re), 2023 ONSC 4315 reminds litigants and counsel that section 21.1 confers no authority on the court to read in intentions that are not already present or clearly inferable from extrinsic evidence. When interpreting testamentary documents or instruments, the testator’s intentions must be given effect based on the contents of the instruments themselves or extrinsic evidence available under the “armchair rule”.
While jurisprudence continues to develop, litigants and counsel alike now have greater certainty over the legal test to be met for a successful application under section 21.1.