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Have Ontario’s Courts dispensed with Strict compliance with the Formalities of Execution?

Imagine that Johnny is dying.  The doctors tell him to get his affairs in order.  The patient’s only living relative is an elderly aunt whom he despises.  Johnny wants to give all his money to his Church but, without a Will, by virtue of Ontario’s laws of intestacy that aunt will inherit everything.  A lawyer prepares a Will setting out Johnny’s testamentary wishes.  Johnny walks into the lawyer’s office, reads the will, and says it’s perfect.  There is no doubt as to Johnny’s intent as the lawyer has taken the precaution to videotape the whole process.  Johnny picks up the pen, is about to sign and dies.  Is the Will valid in Ontario?  It is almost certainly not valid1, but there remains some doubt.  If everyone knows Johnny’s true testamentary intentions what rationalization exists for not accepting the unsigned document as a valid Will?

The legislatures, courts and Law Reform Committees in Canada have provided different policy reasons to justify strict compliance with the formalities of execution.  It’s been suggested2 that the formalities of execution:

  1. Ensure that the Will was executed by the person purporting to be the testator and prevents a ne’er-do-well from impersonating the testator or someone from forging the testator’s signature;
  2. Avoid fraud, undue influence and coercion;
  3. Enhance the testator’s appreciation of the importance of the document;
  4. Make the administration easier with respect to granting probate; and
  5. Prevent opening the flood gates to various claims respecting documents that are purportedly wills.

In Ontario the rules with respect to wills, known as the formalities of execution, are set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA].  The formalities of execution require that a will be in writing (s.3) and signed by the testator (or by some other person in the testator’s presence and by the testator’s direction), with the testator acknowledging their signature in the presence of two or more attesting witnesses present at the same time. Further, the will must then be signed by the two or more witnesses in the presence of the testator (s.4).  Section 4(1)(a) of the  SLRA is clear and unambiguous.  A will is not valid unless, at its end, it is signed by the testator or by some other person in his or her presence and by his or her direction3.   Do Ontario courts have discretion to dispense with the formal requirements imposed by the SLRA ?  Several Ontario cases suggest the answer may be yes.

In Sisson v. Park Street Baptist Church4, the Court upheld a will where two witnesses were present when the testator executed the will, but only one witness signed the will. It is important to note that in Sisson the application was not opposed and the witness that had not signed had failed to do so inadvertently.  In Malichen Estate5 a husband and wife inadvertently executed each other’s wills. The Court upheld both wills.  Before jumping to any conclusions that these cases are reflective of a trend for Ontario courts to recognize substantial compliance  it is important to note that in both these cases the errors were inadvertent. Moreover, many believe these cases were decided incorrectly.  O’Flynn J. in Sills et al. v. Daley reviewed Sisson, Malichen and declined to follow them.  Instead, he followed Hindmarsh v. Charlton, Ellis v Turner, Bolton v Tartaglia and Re Murphy Estate.

In paragraph 40 of Sisson v. Park Street Baptist Church4, Justice Murphy of the Ontario Court of Justice stated, “that the absence of legislation on point should not stop the court from developing the common law where, in circumstances like this, there has been substantial compliance, given that the dangers which two witnesses are to guard against does not exist here.”  Justice Murphy’s judicial activism on this issue stands in stark contrast to Justice Cullity’s approach in Etorre7 where in response to a submission seeking substantial compliance His Honour stated, “….I would be reluctant to apply the principle of substantial compliance in the absence of a legislative mandate, or its endorsement by an appellate court.” 8  It seems that most other cases in Ontario adopt Justice Cullity’s approach9. From Justice Cullity’s perspective courts must comply with the directions of the legislature and are not at liberty to change the law introducing uncertainty.  As the court stated in Hindmarsh v Charlton 10  “…we must obey the directions of the legislature, and are not at liberty to introduce nice distinctions which may bring great uncertainty and confusion”

When considering the issues in this debate it is important to remember that the SLRA. provides certain instances where a testamentary disposition is valid without compliance with the formalities of execution.  These include:

  1. Holograph wills which are wills wholly in the testator’s writing, and signed by the testator without the necessity of subscribing witnesses11;
  2. Wills prepared by member of forces on active duty12. Wills prepared by members of the forces, such as the Canadian Forces, on active duty do not need to be witnessed; and
  3. Gifts Mortis Causa13;

Hillary Laidlaw’s article, “Sills v Daley and the doctrine of substantial compliance:  Is close enough good enough?14 provides a very interesting perspective on this debate.  She quotes John Langbeins’ article15, in support of substantial compliance.  Lanngbein asserts, “The rule of literal compliance… is a snare for the ignorant and the ill-advised, a needless hangover from a time when the law of proof was in its infancy”.

It is clear that the logic of the “substantial compliance” argument has impacted on the Canadian legal landscape.  A number of provinces have enacted legislation specifically giving judges the discretion to dispense with the formalities of execution, as long as the document in question substantially complies with the formalities of execution required by its local provincial legislation and is in accordance with the testator’s wishes. Examples of such legislation include the Saskatchewan Wills Act16, Manitoba Wills Act17, Nova Scotia18 and soon British Colombia19.  Ontario has not amended its legislation to provide for substantial compliance.

Right now, in Ontario, there remains a level of uncertainty because certain judges have appeared to step outside what seems to be the clear intent of the governing legislation.  This issue will be resolved only when either Ontario’s legislature or the Ontario Court of Appeal or legislature eventually deal with the issue.

  1.   In Ontario, almost all the cases that address this issue stand for the proposition that full compliance with the formalities of execution is required for a will to be valid.  The two exceptions are Sisson v Park Street Baptist Church (1999), 24 E.T.R. (2d) (Ont. Gen Div.) (Sisson) and Malichan Estate 6 E.T.R. (2d) 217, (Ont. Gen. Div.).
  2.   Please See the Alberta Law Reform Institute, “Wills and the Legal Effects of Changes Circumstances” Final Report No.98 August 10, 2010 found at   Alberta Law Reform Institute – Wills:  Non-Compliance with Formalities, Formal Report No. 84 June 2000.  Alberta Law Reform Institute, “Wills:  Non-Compliance With Formalities.  December 1999 found at  ; Estate Litigation basics – 2010 Update CLE BC found at .  See Hillary Laidlaw’s article, “Sills v Daley and the doctrine of substantial compliance:  Is close enough good enough?” found at .
  3.   Brian A. Schnurr, Estate Litigation, 2nd ed., chapter 18.13; Papageorgiou v. Walstaff Estate, (2008) 2620, 42 E.T.R. (3d) (S.C.J.).
  4.   Sisson.
  5.   6 E.T.R. (2d) 217, (Ont. Gen. Div.).
  6.   Sisson.
  7.   Ettorre Estate, Re (2004), 2004 CarswellOnt 3618, 11 E.T.R. (3d) 208 (Ont. S.C.J.) (Etorre).
  8.   See paragraph 37 of Etorre and Hidmarsh v. Charlton (1861) H.L. Cas. 160.
  9.   See Sills v. Daley (2002), 3 E.T.R. (3d) 297 (S.C.J.) and  Papageorgiou v. Walstaff Estate, (2008) 2620, 42 E.T.R. (3d) (S.C.J.).
  10.   Hindmarsh v. Charlton (1861), 8 H.L Cas. 160 at 166-167.  For more on the issue of judicial activism in Canada I refer the reader to  “Remarks of the Right Honourable Beverley McLachlin, P.C.” which can be found at .  In her address she tries to address the following question, “What then of the accusation that courts have gone beyond their proper role? The charge is made that activist judges – politicians cloaked in judicial robes – have gone beyond impartial judging to advocate for special causes and achieve particular political goals, and that this is undemocratic.”
  11.   Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26.
  12.   Succession Law Reform Act, R.S.O. 1990, c. S.26. , sections 5 and 6;
  13.   Section 72(1)(a) the Succession Law Reform Act, R.S.O. 1990, c. S.26;
  14.   See pdf copy of the article
  15.   John H. Langbein “ Substantial Compliance with the Wills Act” (1975) 88 Harv. L. Rev. 489;
  16.   The Wills Act, Chapter W-12.1, 1996, section 37.
  17.   The Wills Act, C.C.S.M., c. W150, section 23.
  18.   Wills Act, R.S.N.S., 1989, c. 505, section 8A
  19.   Wills, Estates and Succession Act, S.B.C. 2009 c. 13 (Bill 4) (not yet in force), section 58(3)
Toronto Estate Litigator - Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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