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Interpreting Ontario’s Validating Provision In Grattan Estate

Grattan Estate[1]

 Author’s acknowledgement[2]


On February 16, 2021, Bill 245 the Accelerating Access to Justice Act, 2021 proposed welcome amendments to the Succession Law Reform Act.[3] On January 1, 2022, amendments to the SLRA came into force. Of note was the addition of section 21.1(1) to the SLRA, a validating provision for wills, similar to that which exists in many other Canadian jurisdictions.[4]

While there has been some jurisprudence from these jurisdictions to inform our courts on how to interpret these provisions, until recently, Ontario has not had a decision which interprets section 21.1(1).

On February 1, 2023, the Ontario Superior Court of Justice released the reasons for decision of the Honourable Mr. Justice J.M. Johnston in the unreported decision of Grattan Estate. This decision applies the aforementioned section 21.1(1) to validate a will despite its non-compliance with section 4 [2] of the SLRA.

To briefly recap, the relevant sections of the SLRA are outlined below:

Section 4 [2]

Valid execution of will

(2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a)  at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b)  the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c)  two or more of the attesting witnesses subscribe the will in the presence of the testator. 2021, c. 4, Sched. 9, s. 1 (1).

Section 21.1(1)

Court-ordered validity

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made. 2021, c. 4, Sched. 9, s. 5.

Grattan Estate – Background

In the case of Grattan Estate, the Applicant was seeking a declaration order that the Last Will and Testament of the Deceased is valid and fully effective as the Will of the Deceased, as if it had been properly executed. At issue was the fact that the Last Will and Testament of the Deceased was never signed, nor witnessed.

The Deceased passed away on February 15, 2022 at the age of 75. Her only surviving sibling was her brother, the Applicant. The Deceased had little remaining family; she had no surviving spouse or children and was predeceased by her parents and three other siblings, other than the Applicant.[5]

The Deceased’s third sibling, the father of the Respondent, passed away on November 12, 2013. The Respondent, admittedly, did not maintain a relationship with his aunt, the Deceased.

Before her passing, the Deceased retained Ms. Ainslie Coleman (the “Solicitor”) to prepare a Last Will and Testament for her. The Deceased had no previous Will or other testamentary document.[6]

The Deceased met with the Solicitor on January 10, 2022. At this meeting, the Deceased provided instructions to prepare a Will which included her wish to bequeath the entirety of the residue of her estate to her surviving brother, the Applicant. A memorandum was also prepared which confirms same. What’s more, the decision notes that “a notation in the family details portion of the estate planning information checklist in the solicitor’s file, indicates the Deceased and [the Respondent] were estranged.”[7]

As a result of the January 10 meeting, the Solicitor prepared a Last Will and Testament in accordance with the Deceased’s instructions (the “Will”). In this Will, the Deceased named her brother sole beneficiary and Estate Trustee.

The Will

The Will was delivered to the Deceased ten days after the initial meeting. The Deceased reviewed the draft and made minor corrections.[8] The Deceased returned the draft with changes to the Solicitor via email on January 31, 2022. The Solicitor’s office replied the next day and attempted to schedule a follow-up appointment with the Deceased. This did not transpire and unfortunately, the Deceased passed away fifteen days later, prior to the formal execution of the Will.

The Respondent’s Position

The Respondent, although having been properly served, did not file a response and did not contact the Applicant’s counsel or attend court. He initially indicated an agreement to defer any entitlement to any inheritance he might receive, however, he later resiled from that agreement, explaining that the “distance was making me guilty.”

The Law

The Will of the Deceased was not signed or witnessed as thus, did not meet the requirements for valid execution pursuant to section 4 [2] of the SLRA. The court in Grattan Estate, therefore, looked to the validating provision in section 21.1(1) of the SLRA.

As counsel could not provide the court with any jurisprudence interpreting section 21.1(1), the court looked to precedents in other provinces which feature similar legislation:

Decisions of the British Columbia Supreme Court

First, the court looked to the decision in Bishop Estate v Sheardown,[9] a case which is strikingly similar to the case at bar. In that case, the deceased had given instructions to a lawyer to prepare her Will. A draft was reviewed and minor changes were made. As a result of the COVID-19 Pandemic, her follow-up appointment was cancelled and she died shortly thereafter. It was noted that in Bishop Estate “the Court stated that the analysis of whether the curative provision applies centres on two issues: first: whether the document is authentic and second, does it represent the deceased’s deliberate, or fixed and final intentions regarding the disposal of her property upon death.”

In Bishop Estate, the British Columbia Supreme Court applied section 58 (1) of the Wills, Estates and Succession Act[10] to cure the noncompliance of the will at issue.

Next, the Court looked at the decision in the case of Gibb Estate (Re)[11] where the court applied section 58 (1) of WESA and found that a draft will reviewed over the phone with a lawyer which was never signed was valid. In Gibb Estate, the court found that the Will represented Mr. Gibb’s fixed and final testamentary intentions, notwithstanding the lack of signature.


Manitoba features a similar provision to Ontario’s section 21.1(1). For more on Manitoba’s legislation, Professor Albert Oosterhoff has previously written extensively on the subject here.[12]

In the Manitoba Court of Appeal decision in George v Daily,[13] the Court stated that “the crucial question to be answered is whether there was a deliberated or fixed and final expression of intention as to the disposal of his or her property on death; not every expression made by person whether made orally or in writing respecting the disposal of his/her property on death embodies his/her testamentary intention.”


The court in Grattan Estate was satisfied that the Will of the Deceased is an authentic document, prepared by a lawyer with direct instructions of the Deceased with the purpose of preparing a formal will and that those instructions were clear, settled and unambiguous.[14]

The court concluded that the Will set out the fixed and final intentions of the Deceased. This was supported by the evidence of the Solicitor. The court also found that because a short time expired between the review of the document, the Deceased’s approval, and her death fifteen days later, a finding that these were in fact her final intentions was favourable. The court found that “there is no evidence to suggest that she changed her mind in the intervening time. Nor that she delayed in attending at the lawyer’s office to sign it because of change of mind.”[15]


The court concluded on a balance of probabilities that the delay of fifteen days did not equal evidence of a change in the Deceased’s testamentary intentions, nor give rise to an inference that the Deceased changed her testamentary intentions.

Rather, the court held that it made sense that the Deceased intended for her brother, the Applicant, to be both Trustee and sole beneficiary, and noted the estrangement with the nephew, the Respondent.

As a result, the court held that the Will of the Deceased is valid and fully effective, despite the noncompliance with section 4 [2] of the SLRA.


The facts in Grattan Estate, although not complex, are important in illustrating some of the common issues that arise in circumstances where a testator intends to formally execute their Will but for whatever unforeseen reason (usually their death), they are unable to do so. These are typically the kinds of cases that section 21.1(1) was drafted to address. It is not surprising, therefore, that the same kinds of cases and interpretations are easily imported from other jurisdictions in Canada.

The decision in Grattan Estate, however, curiously only considered cases from British Columbia and Manitoba, rather than other jurisdictions such as Alberta.[16] In the 2021 decision in Re McCarthy Estate,[17] the Alberta Court of Appeal allowed an appeal in a case where the applicant sought to have an unwitnessed will validated as the Last Will and Testament of the Deceased. As previously written by Professor Oosterhoff, in McCarthy Estate “[t]he court expressed the opinion that the only reasonable inference was that the document set out the testamentary intentions of the deceased, and that the document on its face made it apparent that the deceased, by signing the document intended to give full effect to it as her will, all as required by s. 37.” For more on Alberta’s validating power, see Professor Oosterhoff’s blog on the subject.[18]

This decision is not currently known to be under appeal. It will be interesting to follow these s.21.1 decisions as they are revealed to learn what the Ontario approach will ultimately be.

[1] Grattan v Grattan Estate, 1 February 2023, Ontario 22-054 (ONSC) [Grattan Estate].

[2] With special thanks to Professor Albert Oosterhoff for his valuable insight and thoughts on validating powers.

[3] R.S.O. 1990, c. S.26 [SLRA]. For additional information on the Accelerating Access to Justice Act, 2021 see Professor Albert Oosterhoff’s article, “Welcome Amendments to Ontario’s Succession Law Reform Act” (2021) WEL Partners Blog, accessed online: https://welpartners.com/blog/2021/02/welcome-amendments-to-ontarios-succession-law-reform-act/

[4] For additional information on similar types of legislation across Canada, see Professor Albert Oosterhoff’s blog, “Validating Powers and Rectification Powers” (2022) WEL Partners Blog, accessed online: https://welpartners.com/blog/2022/03/validating-powers-and-rectification-powers/

[5] Grattan Estate, supra note 1 at paras. 2-3.

[6] Ibid., para.7.

[7] Ibid., para. 8.

[8] Ibid., at para. 11 where it is noted that “the corrections made by the Deceased dealt only with the spelling of names and location of her residence. No changes were made by the Deceased to the distribution provisions of her estate, none of the changes were substantive in nature.”

[9] 2021, BSCC 1571 [Bishop Estate].

[10] [SBC 2009] Ch. 13 [WESA]; which is legislation that is similar to the legislation under consideration in the case at bar.

[11] 2021, BCSC 2461.

[12] See Albert Oosterhoff, “The Usefulness of a Validating Power” June 2, 2020, WEL Partners Blog, accessed online: https://welpartners.com/blog/2020/06/the-usefulness-of-a-validating-power/

[13] 1997 CanLII 17 825.

[14] Grattan Estate, supra note 1 at para. 22.

[15] Ibid., at para. 24.

[16] It should be noted that Alberta’s Wills and Succession Act, SA 2010, c W012.2, s. 14 differs from most other Canadian dispensing powers in that it requires a will be signed by the testator.

[17] 2021 ABCA 403, 37 ETR 4th 1 [McCarthy Estate].

[18] Albert Oosterhoff, “Application of Alberta’s Validating Power: Re McCarthy Estate” June 14, 2022, WEL Partners Blog, online: https://welpartners.com/blog/2022/06/application-of-albertas-validating-power-re-mccarthy-estate


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