Substantial Compliance: Best Practice

As substantial compliance gains more traction in Canada, learn about its potential pitfalls for estate planning and how you can avoid them.

Substantial Compliance Use and Risks

As more Canadian provinces adopt the substantial compliance provision within their respective legislation, estate planning lawyers and their clients must take extra precautions to ensure their estate plans remain enforceable. Substantial compliance provisions generally allow courts to use a curative or dispensing power to validate documents and records that do not comply with the formal requirements of a will but had expressed the decedent’s testamentary intentions. With this provision, courts will no longer discard a will due to a misplaced signature or execution error when the document in question shows a fixed and final testamentary intention. While lawyers and testators might breathe a sigh of relief, relaxing the formalities will also create new issues for the estate planning process. A written will becomes susceptible to being unintentionally revoked by a future testamentary document. Decedents may unintentionally cause will contests to determine whether a discovered document expresses their testamentary intention.

What is a Testamentary Intention?

Substantial compliance legislation allows improperly created wills or amendments to be enforceable if they represent the testator’s testamentary intentions. Yet what exactly is a testamentary intention? George v. Daily 1997 CanLII 17825 (MB CA) is the seminal case on the matter. John Daily (the deceased) had instructed his accountant and lawyer to revise his existing will and devise his estate to charity. His lawyer asked him first to complete a mental competency test. Daily died two months later without completing the test or executing a new will. Justice Philips clarified the components of a testamentary intention, writing:

“The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.”

While Daily confirmed he wanted to change his property’s disposition, his statements were deemed insufficient to create a deliberate and fixed expression. Without these elements, a court can not validate a purported testamentary document under a substantial compliance provision.

Alterations to a Will

Ascertaining the deceased’s testamentary intentions can be a difficult task. When the testator appears to alter their estate plan on their own, they will frequently miss the formalities required by legislation and trigger a look into their testamentary intentions. In Levesque Estate (Re), 2019 BCSC 927, the proposed executor found that the decedent’s will was altered with white-out to remove her granddaughter from any inheritance. It was uncertain whether the decedent committed the alteration, why it was made, and if it was an expression of the testatrix’s deliberate and final intention. Acting as a detective, Justice Gomery found the decedent likely altered her will because of her granddaughter’s elopement. He further inferred that the carefully dabbed white-out on the original will could only be an intentional, deliberate, and final act of the testatrix. With no evidence of undue influence or a lack of testamentary capacity, Ms. Levesque’s expressed a valid testamentary intention. The alteration was found substantially compliant with statutory requirements and, as a result, enforceable. Levesque is a reminder of how difficult it is for courts to gauge the testamentary intent of those who quietly amend their will. A testator should communicate these amendments to an attorney or loved ones to ensure their validation in court. 

Testators who amend their will through substantial compliance risk revoking their entire will. The testator in Dalla Lana Estate (Re), 2020 ABQB 135 made notes on two sticky notes four days before his death. Although he specified that these were “changes to [his] earlier will,” the court found that the changes were so substantial that they effectively rewrote it entirely. The sticky notes demonstrated Mr. Dalla Lana’s serious, final, and deliberate intention. He had signed the sticky notes on top and bottom, included all typical sections of a will, left nothing he owned undistributed, and did not appear to create a mere “stepping stone” for a future document. The court found the notes substantially compliant and detailed enough to form a valid will on their own. Despite his clear language of “changing” his will, the judge decided the sticky notes revoked the original 1997 will. Through substantial compliance provisions, courts may find that new notes or amendments may constitute a valid will on their own and cancel any prior instruments. 

Memoranda and Substantial Compliance

Further complicating the matter is the widespread use of memoranda in estate planning. Many estate planning attorneys advise their clients to create non-binding personal memoranda for the preferred arrangement of their belongings. Rather than individually bequeathing personal effects in a will, testators leave alterable memoranda for executors to follow. This practice allows them to change the distribution of personal property without formally redoing the will every time. While not probateable and unenforceable in court, these notes can offer more flexibility for minor conveyances. 

Substantial compliance legislation threatens this practice. A court or loved one may construe the detailed memorandum as a new will and revocation of the previous testamentary instrument. These notes become probateable and subject to the court’s scrutiny. The testatrix in Estate of Young, 2015 BCSC 182 included a provision in her will that her personal belongings would be disposed of by memorandum. Two such notes were found, one which bequeathed the objects individually to named beneficiaries and another that instructed her next-door neighbour to distribute them. The testatrix wrote both after the execution of the will. The court only found the first memo to be enforceable. This decision demonstrates that substantial compliance now considers memoranda part of a testator’s probateable testamentary instruments even when completed and kept separately from the will. Lawyers and their clients must take extra care in using such memoranda so that the testator does not mistakenly revoke or improperly amend their wills. 

Tips for Estate Planners and Testators

As outlined, the substantial compliance provision creates uncertainty for the validity of wills, memos, notes, and amendments as testamentary instruments. A court can be stuck analyzing the testator’s intentions when they made changes to their will. This process remains murky and unpredictable. Even if the testator explicitly wanted to alter their will, a court may find that they had meant to revoke their original instrument. Furthermore, the practice of including non-binding memoranda within one’s estate plan has become a risk to the estate plan’s integrity. 

To avoid costly will contests arising out of accidental testamentary documents, testators and their attorneys should ensure that:

  • The testator clearly identifies notes, memoranda of wishes, or documents not meant to be final or probateable. Include a statement “Not intended to be my will” on these items.
  • Any memoranda use non-binding language and do not follow legal precedents/forms.
  • Memoranda or notes that should not pass probate are kept separate from the will. Consider not mentioning the directives in the will to keep it non-binding. 
  • When drafting a will, the testator clearly identifies that the notes taken do not form part of the testamentary instrument. In other cases, they may wish to state that the notes form a provisional will until they execute a final version. 
  • There are no handwritten notes made on any copies of the will.
  • If the testator wishes to amend their will on their own, they notify their attorney or loved ones of this intention. 

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