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The Usefulness of a Validating Power

1. Introduction

The restrictions imposed in consequence of the COVID-19 Pandemic have affected our society in many ways. One of those ways concerns how we execute estate documents. We quickly learnt that the old way of doing that, by strictly observing the formal requirements imposed by wills statutes and substitute decisions legislation, had to be changed for the duration of the restrictions. In a blog posted on 23 April 2020,[1] I described how Ontario passed two emergency orders on 7 April and 22 April 2020 to address the problem. The first order permitted wills and powers of attorney to be executed and subscribed through the use of audio-visual communication technology. The second permitted the signing and subscription of complete, identical copies of wills and powers of attorney in counterpart if they had been made with the assistance of audio-visual communications.[2]

In my blog I noted that the emergency measures went only part-way in resolving an emergent problem. Thus, they would not assist a testator who lacked access to audio-visual technology. Moreover, in some respects the onus on lawyers who take instructions for wills and attend to their execution is increased when they take advantage of the technology. The emergency orders only concern the formalities of execution. They do not address other requirements that must be met before a will can be declared valid, namely knowledge and approval of the contents, testamentary capacity, and absence of undue influence and fraud. Lawyers must satisfy themselves as best they can that those requirements are satisfied, but that becomes more difficult when they cannot meet face to face with the testator and the witnesses.

In my blog I also noted that provinces which have enacted a validating power, may well be able validate wills that do not fully comply with the statutory formalities during the emergency. Such a power permits the court to make an order declaring a document to be effective as a will even though it has not fully complied with those formalities if the court is satisfied that the document embodies the deceased’s testamentary intentions. Thus, with the use of such a power the court can validate defective wills made by persons who do not have access to audio-visual technology.

In this blog I want to  discuss the advantages of a validating power. In two subsequent blogs I plan to address other ways in which we can and perhaps ought to relax the rules for executing wills, namely by the use of electronic wills and by adopting the device of the statutory will.

2. A Validating Power

Most Canadian jurisdictions have enacted a validating power. It is also called a dispensing power[3] and sometimes, but rather inaccurately, a substantial compliance power.[4] Only Ontario, Newfoundland and Labrador, and the Territories have not done so.[5] I shall restrict my remarks to Ontario in this blog.

In times past, courts adhered strictly to the statutory formalities for executing wills. It was thought that to do otherwise would mean that the court was making a new will for the testator, something that the wills statute did not permit. In more recent times we have taken a more lenient attitude toward the execution of wills and have accepted that it is permissible to “overlook” accidental failures to comply with some of the formalities. However, early attempts to find a power to do so at common law failed. A number of cases at first instance held that there was such a common law power.[6] Others disagreed.[7] Finally, in Papageorgiou v. Walstaff Estate,[8] the Ontario Court of Appeal held that there is no common law validating power. Although there were already some statutory validating powers by then, these decisions gave impetus to enact such powers in provinces that lacked them up to that point.

So, what exactly does a validating power do? To answer that question, it will be helpful to consider Manitoba’s legislation, which was the first in Canada and served as the model for others. Section 23 of its Wills Act[9] provides:

    1. Where, upon application, if the court is satisfied that a document or any writing on a document embodies

(a) the testamentary intentions of a deceased; or

(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;

the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act, as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, as the case may be.

The legislation does not give the court license to do what it likes when a will fails to comply fully with the statutory formalities. In particular, the court must ensure that the document does indeed embody the deceased’s testamentary intention, or his intention to revoke, alter or revive a will.[10] If it does not, it cannot be validated.[11] Thus, for example, a person’s unsigned notes prepared by her before seeing her lawyer to instruct him to prepare her will, does not constitute her will. [12] But unsigned and undated additions to a holograph will can be validated if they do express the deceased’s testamentary intentions.[13] On the other hand, if the deceased lacked testamentary capacity,[14] or was subjected to undue influence, [15] the document cannot be validated, since the legislation is concerned only with defective formalities, and does not permit validation of a will that is invalid because of other vitiating factors.

Thus, a will does not necessarily have to be signed, provided that it embodies the deceased’s testamentary intention.[16] However, courts sometimes go quite far in validating a defective will. Re Estate of Jean Agnes MacDonald Marsden[17] may be such a case. The court validated a will for which the testator (who was in hospital with a terminal illness) had given instructions to a lawyer, but which she was unable to execute before her death. Alberta’s legislation also contains a rectification provision in s. 39, under which the court can add a testator’s signature if satisfied that the testator had intended to execute the will, but failed to do so by mistake.[18] So also the validating power can be used to validate a will that is written in the testator’s hand on a stationer’s will form and signed by him.[19] The power can also be used to permit a will to take effect when two persons have signed each other’s wills by mistake.[20]

I think that the foregoing discussion will suffice to illustrate the advantage of a validating power.[21] People often fail to consult a lawyer when they want to make a will and try to make one on their own. So long as the court can be satisfied that the document does embody a deceased’s testamentary intentions, it seems right to validate her somewhat inadequate efforts. This is particularly so during emergencies such as the current pandemic when people may be unable to consult a lawyer.

Therefore, I believe that we should enact a validating power in Ontario without delay.

[1]    “Executing Wills and Powers of Attorney During the Pandemic”. http://welpartners.com/blog/2020/04/executing-wills-and-powers-of-attorney-during-the-pandemic/.

[2]    Meanwhile, several other provinces also made provision for the use of audio-visual technology for the execution of estate documents: Quebec: decree 2020, 27 March 2020; Newfoundland and Labrador: Temporary Alternate Witnessing of Documents Act, Bill 35, 1st Session, 49th Legislature; Manitoba: Order re Temporary Suspension of In-Person Commissioning and Witnessing Provisions, 13 May 2020; Saskatchewan: Wills (Public Emergencies) Regulations, O.C. 168/2020; Alberta: Ministerial Order 39/2020, 15 May 2020; British Columbia: Ministerial Order M61, 19 May 2020.

[3]    I believe that the term “validating power” is better than “dispensing power”. The court does not really dispense with the formal requirements. Instead it validates a will that does not comply with all of them.

[4]    That moniker is incorrect, because it suggests that the court is causing a will to be compliant with the statutory formalities. It doesn’t. Rather, it validates a will that does not comply with (some of) those formalities. Cf. Re Bunn Estate, 1992 CarswellSask 311,  45 E.T.R. 254 (C.A.), para. 19, per Vancise J.A.

[5]    The statutes are: Civil Code of Quebec, art. 714; Indian Act, R.S.C. 1985, c. I-5, s. 45(2); Indian Estate Regulations, C.R.C. 1978, c. 954, s. 15; Probate Act, R.S.P.E.I. 1988, c. P-21, s. 70; Wills Act, C.C.S.M., c. W150, s. 23; R.S.N.B. 1973, c. W-9, s. 35.1, added by S.N.B. 1997, c. 7, s. 1; R.S.N.S.1989, c. 505, s. 8A, added by 2006, c. 49, s. 2; S.S. 1996, c. W-14.1, s. 37; Wills and Succession Act, S.A. 2010, c. W-12.2, ss. 37, 38; Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 58. And see also Wills Amendment Act, 2000, s. 2, repealing s. 19.1 of the Uniform Wills Act and enacting a new s. 19.1, Uniform Law Conference of Canada.

[6]    See, e.g., Sisson v. Park Street Baptist Church (1998), 24 E.T.R. 2d) 18 (Ont. Gen. Div.).

[7]    See, e.g., Sills v. Daley (2002), 3 E.T.R. (3d) 297 (Ont. S.C.J.).

[8]    2009 ONCA 136, 45 E.T.R. (3d) 1.

[9]    C.S.C.M., c. W150.

[10]   National Trust Co. v. Sutton, 1984 CarswellMan 152, 17 E.T.R. 765 (Q.B.), para. 4, per Hanssen J.; Re Bunn Estate, 1992 CarswellSask 311,  45 E.T.R. 254 (C.A.), paras. 19-21, per Vancise J.A.; Re Young Estate, 2015 BCSC 182, 5 E.T.R. (4th) 161,

[11]   See, e.g., Kube v. Kube, 2015 SKCA 49, 6 E.T.R. (4th) 159.

[12]   Woods v. Cannon, 2014 ABQB 614, 4 E.T.R. (4th) 44. See also Cates v. Quinn, 2016 BCSC 1226, 21 E.T.R. (4th) 299.

[13]   Oh v. Robinson, 211 SKQB 200, affirmed 2012 SKCA 27, 74 E.T.R. (3d) 187, leave to appeal refused (2012), 440 N.R. 392 (note). And see also Giesbrecht v. Giesbrecht, 2018 SKQB 249, 41 E.T.R. (4th) 308, to the same effect.

[14]   Weselowski v. Weselowski, 2003 MBQB 191, 229 D.L.R. (4th) 407, additional reasons 2004 MBQB 11, 5 E.T.R. (3d) 161.

[15]   See, e.g. Re Craig Estate, 2018 ABQB 830, 41 E.T.R. (4th) 276, in which a party made allegations of undue influence and the court directed that the will be proved in solemn form. See also Pahlanuk v. Moore Estate, 2013 MBQB 15, 87 E.T.R. (3d) 55.

[16]   Re Briggs (1985, 21 E.T.R. 127 (Man. Q.B.); Kuszak v. Smoley (1986), 23 E.T.R. 237 (Man. Q.B.).

[17]   2017 NBQB 199, 33 E.T.R. (4th) 333, affirmed sub nom. Marsden v. Talbot, 2019 NBCA 82, 46 E.T.R. (4th) 209.

[18]   See Edmunds Estate, 2017 ABQB 754, 33 E.T.R. (4th) 111, affirmed sub nom. Hood v. South Calgary Community Church, 2019 ABCA 34, 45 E.T.R. (4th) 217, in which evidence of intention to execute the will was lacking.

[19]   Kuszak v. Smoley, (1986), 23 E.T.R. 237 (Man. Q.B.).

[20]   See Re McDermid Estate (1994), 5 E.T.R. (2d) 238 (Sask. Q.B.). And see Marley v. Rawlings, [2014] UKSC 2, in which the court used the English statutory power to rectify a will in a similar situation.

[21]   For a more detailed discussion, see Oosterhoff on Wills, 8th ed. by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters/Carswell, 2016), §9.4. And see the 9th edition forthcoming in 2021.

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