Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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The formalities in the Succession Law Reform Act are strict and unforgiving.  Case law suggests that Ontario courts have no discretion to depart from compliance with the SLRA’s requirements in determining the due execution and formal validity of a Will and its provisions.   

Handwritten alterations made subsequent to the formal execution of a Will are valid in only two situations:

1. If the alterations are signed by testator in the presence of two subscribing witnesses who also sign near the changes or sign at the end of a memorandum elsewhere in the Will that refers to the changes (s. 18(2) SLRA); OR

2. If the alterations constitute a valid Holograph Will or Codicil i.e. they must be wholly in the testator’s handwriting and must be signed by the Testator (s. 6 SLRA).

In order to be a valid Holograph Codicil the markings on the Will must:

• Be capable of standing on their own without reference to the printed text around them; AND
• Indicate a firm testamentary intent.

Any changes that completely obliterate portions of the Will, such that the provisions cannot be discerned from an inspection on the face of the document without resort to artificial means or extrinsic evidence, will be effective to remove said portions from the Will. 
 

Sharon Davis - Click here for more information on Sharon Davis.

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The requirements of formal validity have, on occasion, bedeviled the Courts.  Presented with overwhelming evidence of testamentary intent, the Court's hands may nonetheless be tied by uncompromising legislative requirements.  

In Nova Scotia, the legislature proclaimed (on August 18, 2008) an amendment finally permitting the making of Holograph Wills.  Moreover, the amendment also permits Wills to be admitted to probate that do not meet the requirements of formal validity if the Court is satisfied that a flawed document nonetheless reflects the testamentary intentions of the testator. 

Lawyer's Weekly just reported on MacDonald v. MacDonald, a decision out of the Nova Scotia Supreme Court.  In this case, the testator made a Will entirely in her own handwriting but left it unsigned.  It was, however, witnessed and the two witnesses gave evidence that the testator had attested to it as her last Will in their presence.  The testamentary document before the Court in MacDonald therefore fell within both branches of the amendment to the provincial statute.  However, the Will was not admitted to probate because it was made prior to the proclamation of the amendment to the Wills Act.  Unlike Ontario's Succession Law Reform Act which provided for retroactivity to 1978, the Nova Scotia amendment did not have a similar clause.

David Morgan Smith

David Morgan Smith - Click here for more information on David Smith.