DUE EXECUTION OF A WILL - PART IV
A question that often arises where a will has not been properly executed is whether the will can be proved in any event.
For example, if two witnesses are present when the will is signed, but only one signs as witness. Recently, the Ontario court has affirmed that there is no provision in the Succession Law Reform Act ("SLRA") which allows a court to admit a document to probate as a will where the required formalities have not been observed: there is no doctrine of "substantial compliance" with the law in Ontario. (In some other provinces, the legislation allows a court to admit the Will to probate if the court is satisfied that the will is the true expression of the wishes of the testator.)
In the relatively recent case of Sills v. Daley (2002), the Court rejected the doctrine of substantial compliance. There, only one witness signed the will. The judge reviewed the legal texts, and the caselaw, and found that he could not ignore the clear provisions of the SLRA and allow the will to be probated. To do so, the court held, would be to create a discretion in the court which is not found in the SLRA.
On the other hand, there is the case of Sisson v. Park Street Baptist Church (1998). In Sisson v. Park Street Baptist Church, a lawyer prepared wills for a husband and wife. However, in the flurry of signing and witnessing, the lawyer forgot to sign one of the wills as a witness. There was clear evidence that the will was in accordance with the testator's instructions. Notwithstanding the absence of a witness's signature, probate was granted. The court held that although the SLRA does not have a substantial compliance provision, the court could develop the common law to assist the applicant. The court in Sills v. Daley distinguished Sisson Park by saying that in the case before him, the error was not one of inadvertence.
However, he expressly approved of other cases that applied the doctrine of strict compliance in circumstances that also involved inadvertence. The debate as to whether literal compliance or substantial compliance with the technical legislation continues. Those who favour literal compliance stress that it leads to greater certainty, while proponents of substantial compliance argue that strict compliance often unduly interferes with the clear intentions of the testator. In Ontario, the doctrine of substantial compliance likely does not apply, and literal compliance is likely required.
However, due to the existence of cases like Sisson Park, the matter is not certain. Thus, while literal compliance is meant to lead to greater certainty, there is some uncertainty as to whether the doctrine applies or not.
Have a good day. Paul Trudelle --------
