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The Statutory Requirements for Proof of a Will in Common  Form: Not Common Knowledge in a Time of COVID

In Ontario, it is typically not a legislative requirement that a Last Will and Testament be prepared or executed by a testator with the assistance of a lawyer. It goes without saying, however, that the time of Covid is anything but typical.

On April 22, 2020, the Ontario Government enacted Ontario Regulation 129/20 pursuant to the Emergency Management and Civil Protection Act (the “Regulation”).[1] This Regulation in part amended the Succession Law Reform Act (the “SLRA”) respecting the requirements for the signing and witnessing of a testamentary document.

In summary, the Regulation amended the SLRA to allow for a testator and its subscribing witnesses to sign a Last Will and Testament in each other’s “presence” by the use of audio-visual communication technology.[2] A testator and its witnesses will be deemed to have been in each other’s presence if they are able to see, hear and communicate with one another in real time at the time of execution by use of audio-visual communication technology. This change to the SLRA has allowed for the safe execution of testamentary documents during this rather unsafe time of COVID.

A further and crucial change to the requirements in the SLRA for due-execution of a testamentary document under the Regulations, is that now one of the subscribing witnesses at the time of execution must be a licensee within the meaning of the Law Society Act.[3] Failure to comply with this part of the Regulation can be a fatal error. This was in fact the very case in the decision of Swiddle Estate (Re), 2021 ONSC 1434 (CanLII).[4]

In Swiddle Estate (Re), the Hon. Mr. Justice P. Boucher refused to grant a Certificate of Appointment of Estate Trustee With a Will limited to assets referred to in the Primary will with codicils of Stella Rose Swiddle, to the deceased’s named executor, Ronald Martin Swiddle.

On June 23, 2020, during the height of the COVID pandemic, the late Ms. Swiddle executed a Third Codicil to her Primary Last Will and Testament.[5]

The witnesses to Ms. Swiddle’s Third Codicil were physically located in Greater Sudbury, Ontario, while Ms. Swiddle was at her daughter’s house in Mississauga, where she had spent the winter. The witnesses spoke on the telephone with Ms. Swiddle when she reviewed and signed her Third Codicil.[6] The Third Codicil was sent to the witnesses via Purolator the next day following her execution of it, and they signed it on the last page.

Justice Boucher ruled that since the Third Codicil was not executed in accordance with the SLRA and the amendments thereto made under the Regulations, he was unable to issue the requested Certificate of Appointment.

Looking more closely at Justice Boucher’s endorsement, his Honour was careful to state that he was “unable at this time and on this record to issue the requested Certificate [emphasis added].”

I suspect that Justice Boucher was careful to use these words in light of the pending changes to the SLRA that are currently before Ontario’s Legislative Assembly in  Schedules 7 and 9 of Bill 245, Accelerating Access to Justice Act, 2021 (the “Bill”).

As part of the Bill, the court would be given the authority to validate an improperly executed Last Will and Testament such Ms. Swiddle’s Third Codicil, so that the intentions of a testator might be saved and a testamentary document proven in common form where the document may fail on its face to comply with the strict statutory requirements for due-execution under the SLRA.

In part of their submissions to the Ontario Legislative Assembly on March 12, 2021, Kimberly Whaley, Albert Oosterhoff and Ian Hull explained that as it currently stands under the law, without strict adherence to the SLRA and Regulation it is a “dead stop” that a testamentary document will fail for lack of due-execution. These submissions echoed the words of Bouchard J. in his Honour’s endorsement in Swiddle Estate (Re), where his Honour affirmed that “Ontario is a jurisdiction that requires strict adherence to the formalities of execution of a Will, as set out in the legislation.”

If the Bill passes and is enacted into law in its current form, Justice Boucher may be able to rectify a testamentary document signed in the future in the same way as Ms. Swiddle’s Third Codicil so as to grant the requested Certificate of Appointment. We look forward to seeing how the law develops and if the Bill is passed.

Thank you for reading!

[1] On July 15, 2020 the Regulation was continued pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020

[2] All of the requirements for the virtual execution of Wills and Powers of Attorney can be found at Signatures in Wills and Powers Of Attorney, O Reg 129/20, <https://canlii.ca/t/54cmt>

[3] Law Society Act, RSO 1990, c L.8, <https://canlii.ca/t/54w88>

[4] Swiddle Estate (Re), 2021 ONSC 1434 (CanLII), <https://canlii.ca/t/jdfgc>

[5] The date of Ms. Swiddle’s Last Will and Testaments and Codicils other than her Third Codicil are not referenced in the Court’s Endorsement.

[6] It is not stated in the court’s endorsement if one of the two witnesses to Ms. Swiddle’s Third Codicil was a licensee under the Law Society Act.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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