The addition of s. 21.1 to the Succession Law Reform Act, which came into force on 1 January 2022, was a very welcome change, because it allows the courts to validate a will that up to now would have failed because it did not comply with statutory formalities for wills. Until this change, Ontario was a ‘strict compliance’ jurisdiction. That means that a will had to comply strictly with those formalities.
However, there are some misconceptions about the nature of validating powers and how they should be applied, and it seems to me important to set out what a validating power is and what it enables a court to do before courts in Ontario actually have to deal with an application under s. 21.1.
Since it seems likely that soon other amendments to the Act will be proposed, in particular amendments regarding admissible evidence in interpreting wills and regarding rectification of wills, I should like to speak to such possible amendments too. I hope that may be forgiven for possibly being presumptuous about such amendments before they are broached but it seems desirable to me to consider them now.
2. Full Review and Revision of the SLRA
As I have noted elsewhere, I believe it important that we engage in a full review of the Act. The Act is more than 40 years old and has not kept pace with changes in society. It is true that there have been a number of amendments over the years, and they have been good ones. One example is the provision that recognizes posthumous conception. But as a result, the Act has become a patchwork and its provisions can only be rationalized through a full review. And when that is being done, new amendments can be inserted in their proper places.
3. Validating Powers, not Substantial Compliance Powers
I note that some Ontario lawyers refer to s. 21.1 as a ‘substantial compliance’ provision. I confess that at one time I thought that similar statutory provisions should be so identified. But it is wrong. It is true that early statutory provisions in some common law jurisdictions that permitted the court to probate a will even though it did not comply fully with the statutory formalities were substantial compliance provisions because they permitted the court to grant probate if the will in question complied substantially with the statutory formalities. The problem with this approach is that courts need to determine how much compliance is necessary before they can act. In effect the court has to determine in each case what the word ‘substantial’ means.
The problem became evident in the first version of Manitoba’s legislation. Section 23 of its Wills Act was originally enacted in 1983 and was the first validating power in common law Canada. In Langseth Estate v Gardiner the Manitoba Court of Appeal held that section 23 required the court to be satisfied that the document embodied the testator’s testamentary intentions, and that there had been some compliance with the formal requirements. The second requirement would have turned section 23 into a substantial compliance provision. The Manitoba Law Reform Commission wrote to the Minister of Justice and Attorney General that the legislation should be amended to make it clear that section 23 conferred a general dispensation power on the courts. Accordingly, it recommended that section 23 be amended to insert the words ‘any or’ before the word ‘all’ in the clause ‘was not executed in compliance with all the formal requirements imposed by the Act’. The section was amended in 1995 to incorporate those words. In the subsequent case, George v Daily, the Court of Appeal agreed that the court erred in Langseth in laying down a two-step approach that the court should follow when applying section 23. Thus, no compliance with the formal requirements of the Act was necessary. The only thing required is that the document represents the fixed and final testamentary intentions of the testator.
Since most validating provisions in common law Canada were copied from Manitoba’s section 23, it is clear that these provisions are all validating provisions and not substantial compliance provisions. In my blog, ‘Canadian Will Validating Provisions’, I also made this point, and pointed out that the Prince Edward Island and Alberta provisions are partial compliance provisions, since they require that the document be signed. The blog also notes that there is a validating power under the Indian Act Regulations and there is also a validating power in Quebec. The latter is also a partial compliance provision.
Section 21.1 is also based closely on Manitoba’s section 23. Therefore, it must be treated and identified as a validating provision, not as a substantial compliance provision.
4. Power to Rectify a Will
I have also noticed that lawyers have an incorrect understanding of the court’s power to rectify a will. It is often said that the power is equitable. But this incorrect. The court has wide power under its equitable jurisdiction to rectify commercial documents as well as inter vivos trusts. But that jurisdiction does not extend to correcting wills. There are two occasions when a court may want to correct wills, at the probate stage and at the construction stage. And the rules are quite different for the two stages. I have written about this before, but it seems to be necessary to repeat what I have said earlier. In what follows I discuss the non-statutory law on this issue first, after which I shall discuss statutory changes enacted in a couple of provinces.
Except for New Brunswick and Nova Scotia, which still retain separate probate courts, all common law jurisdictions in Canada have transferred the jurisdiction of their former surrogate courts to their Superior Courts. That means that the Superior Courts now have two jurisdictions with respect to wills: probate jurisdiction and construction jurisdiction. I have written extensively about this change and refer the reader back to my earlier article. But it is important to restate the salient points.
When the Superior Courts acquired probate jurisdiction, the law of probate developed over the years in the surrogate courts, including the law they inherited from the English ecclesiastical courts was not abolished, but was transferred to the Superior Courts. Those courts already exercised their jurisdiction to interpret a will whenever that was necessary. But that jurisdiction was quite different from the new probate jurisdiction they acquired. There was no merger of the two jurisdictions. Thus, when an executor submits a will for probate, the Superior Court decides whether to grant probate in accordance with probate law. Once it grants probate the court may then have to wear its construction hat to interpret the will if there is a question about the meaning of the will.
The point is that the court cannot bring construction law into play at the probate stage. It is irrelevant. One case suggested that the court can also construe a will at the probate stage, but apart from very exceptional situations, which I mention in my article, it may not do so.
I now turn to the court’s power to rectify a will at the probate stage. Its power to do so is very limited. On the one hand, the court of probate has wide jurisdiction admit evidence. It must obviously consider the written document. But it may also consider extrinsic evidence, direct evidence of the testator’s intention, and even hearsay evidence. On the other hand, the court of probate can only rectify a will by striking out words or passages that were inserted by mistake. It lacks power to substitute words that the testator intended to use. Moreover, older cases held that if the testator had read the will or had it read and explained to her by her solicitor, she should be presumed to know and approve its contents. Similarly, she was bound by language deliberately chosen by the drafter. Thus, in those cases the court could not strike out errors.
In contrast, at the construction stage the court’s jurisdiction to admit evidence was traditionally quite limited. Under the former objective approach, the court had initially to construe the will without reference to anything other than the will itself, even if such a construction led to deplorable and sometimes risible results. Only if the construction led to an ambiguity could the court consider extrinsic evidence, that is, evidence of surrounding circumstances when the will was made. Fortunately, the objective approach was discredited and replaced with the subjective approach. Under it the court seeks to ascertain what the testator intended. Thus, the court can consider extrinsic evidence immediately when it begins to construe the will. A term often used for this is that the court can ‘sit in the testator’s armchair’ which she might have occupied when she made the will. On the other hand, the court of construction cannot admit direct evidence of the testator’s intention, except: (a) if the gift is to a person who, as the testator knew, was already dead when the testator made the will; or (b) if there is an equivocation, sometimes called a latent ambiguity. An equivocation arises when there are two or more subjects or objects to which the description in the will applies equally.
The court of construction also has a limited power to ‘rectify’ a will by correcting omissions and errors and rejecting incorrect descriptions in wills. This power is not in fact a power to rectify. What the court does instead is interpret the will as probated and declares its meaning. In the process of doing that, it can add, vary, or reject words in the will to give effect to the testator’s intention. This is called ‘correcting errors and omissions by implication’. Thus, this power is not the equitable power that a court applies to rectify inter vivos trusts and commercial documents. Such corrections are made in the exercise of the court’s equitable jurisdiction, but that cannot be used in interpreting wills. Note that the court of construction can only exercise the jurisdiction of correcting errors and omissions by implication if: (a) it is satisfied that the will contains an inaccurate expression by the testator of his intentions; and (b) if it is clear from the will itself what words the testator had in mind when he made the error in the will or omitted words from the will. In other words, the court cannot consider extrinsic evidence for this purpose..
With great respect, it seems that the Ontario Court of Appeal failed to appreciate the differences between the probate and construction jurisdictions of the court in Robinson Estate v Robinson. The testator had two wills, a Canadian one and a Spanish one. The first disposed of her Canadian assets and the second of her European assets. The latter gave a life interest in a London apartment to her friend, Richard Rondel. Later the testator revoked her Canadian will and made a new one. It said nothing about the gift of the apartment to Rondel. The new will contained a standard revocation clause that revoked all previous wills. Rondel brought an application to set aside probate of the new Canadian will and rectifying that will by deleting the revocation clause. Belobaba J. dismissed the application on the ground that the testator had reviewed the will with her solicitor, so that he could not rectify the will. That was a possible decision under existing law. On appeal, Rondel argued that Belobaba J erred in finding that he could not, sitting as a probate judge, give effect to the testator’s intentions. But the court dismissed the appeal. It assumed that Belobaba was sitting as a court of construction and was right to reject the evidence submitted to correct the will. The court found it was not necessary for it to discuss the technicalities of the court’s deletion power, the scope of its interpretation power, and the equitable remedy of rectification.
These restrictions on the admissibility of evidence and on rectifying wills have meant that many wills could not be corrected and consequently, the testator’s intention was often frustrated. For that reason, a few jurisdictions have enacted legislation that gives the court: (a) a wider power to admit evidence; and (b) a wider power to rectify a will. Alberta and British Columbia have enacted such legislation and I reproduce the relevant provisions here in the hope that we will enact similar legislation in Ontario. The legislation applies at both the probate and construction stages.
Alberta Wills and Succession Act, SA 2010 c W-12.2
26. A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence:
(a) evidence as to the meaning, in either an ordinary or a specialized sense, of the words or phrases used in the will,
(b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and
(c) evidence of the testator’s intent with regard to the matters referred to in the will.
British Columbia Wills, Estates and Succession Act SBC 2009
4(2) Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless
(a) a provision of the will is meaningless,
(b) a provision of the testamentary instrument is ambiguous
(i) on its face, or
(ii) in light of evidence, other than evidence of the will-maker’s intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or
(c) extrinsic evidence is expressly permitted by this Act.
Power to Rectify
Alberta Wills and Succession Act, SA 2010 c W12.2
39(1) The Court may, on application, order that a will be rectified by adding or deleting characters, words or provisions specified by the Court if the Court is satisfied, on clear and convincing evidence, that the will does not reflect the testator’s intentions because of
(a) an accidental slip, omission or misdescription, or
(b) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will.
(2) Subsection (1) applies to the omission of the testator’s signature only if the Court is satisfied on clear and convincing evidence that the testator
(a) intended to sign the document but omitted to do so by pure mistake or inadvertence, and
(b) intended to give effect to the writing in the document as the testator’s will.
(3) An application under this section may not be made more than 6 months after the date the grant of probate or administration is issued, unless the Court orders an extension of that period.
(4) The Court may order an extension of the period on any terms the Court considers just.
British Columbia Wills, Estates and Succession Act, SBC 2009 c 13
59(1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of
(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.
(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).
(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.
(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made
(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.
It will be obvious that the Alberta admissible evidence section is significantly broader than the British Columbia one. The two rectification sections are quite similar, but I query the need for the language in the running head in s. 39(2) of the Alberta Act that requires the court to be satisfied ‘on clear and convincing evidence’ before it can act. In my opinion, the ordinary civil standard of proof should be sufficient.
Such provisions go a long way to allow the court to correct errors in wills and to ensure that the testator’s intentions are honoured and therefore I hope that Ontario will enact similar provisions.
 RSO 1990, c. S.26.
 Albert H Oosterhoff, ‘Should You Be Able to Share in Your Common Law Partner’s Intestate Estate?’ https://welpartners.com/blog/2022/02/should-you-be-able-to-share-in-your-common-law-partners-intestate-estate/, §1.
 For a discussion of the early provisions, see Law Reform Commission of British Columbia Report LRC52, ‘Making and Revocation of Wills’ (1981), pp 45ff; British Columbia Law Institute Report BCLI No 45, ‘Wills, Estates and Succession: A Modern Legal Framework’, pp. 21-25 (2006); Scott Kerwin, ‘Validation and Rectification of Defective Wills under the Wills, Estates and Succession Act: The Tranquil Revolution in Probate Law Comes to British Columbia’ (2014), 33 ETPJ 281 at 285-89.
 CCSM c W150.
 (1990), 75 DLR 4th 26 (Man CA).
 1997 CarswellMan 57, 15 ETR 2d 1 (CA).
 Ibid., para 18, per Philp JA.
 Probate Act, RSPEI 1988, c. P-21, s. 70; Wills and Succession Act, SA 2010, c W-12.2, s 37.
 CRC 1978, c 954, s 15.
 Civil Code of Quebec, LRQ, c C-1991, art 714.
 Albert H Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316.
 Justice Dunphy purported to do this in Re Milne Estate, 2018 ONSC 4174, but the decision was reversed by the Divisional Court at 2019 ONSC 579. In Re Panda, 2018 ONSC 6734 Penny J refused to follow the decision of Justice Dunphy. See my earlier blogs: http://welpartners.com/blog/2018/09/what-is-a-will-and-what-is-the-role-of-a-court-of-probate/; http://welpartners.com/blog/2018/11/what-is-a-will-and-what-is-the-role-of-a-court-of-probate-redux-re-milne-and-re-panda/.
 For a more detailed discussion of these principles, see Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §§7.2-7.6.
 For a discussion of the old cases, see ibid., §7.5
 See ibid. §13.6.2.
 For a recent case that explains these principles very well, see Hicklin Estate v Hicklin, 2019 ABCA 136, 46 ETR 4th 1.
 See ibid., §13.6.3.
 See Law Reform Commission of British Columbia, Report on Interpretation of Wills (LRC 58, 1982), p. 43.
 See ibid., p 46.
 2010 ONSC 3484 (SCJ), affirmed 2011 ONCA 493.
 See the discussion in the text at footnote 15, supra.
 Ibid., 2011 ONCA 493 at para 22. For an incisive discussion of this case, see the comment by the Honourable Maurice Cullity, ‘Rectification of Wills – A Comment on the Robinson Case’ (2012), 31 ETPJ 127.
 See Greg Blue, ‘A Concise Survey of the Wills, Estates and Succession Act of British Columbia’ (2014), 33 ETPJ 327 at 349.