Substantial Compliance For Wills Has Arrived In Ontario

Ontario’s adoption of a substantial compliance framework presents great promise in preventing unfair probate court decisions.

The End of the Holdout

An ongoing and central debate amongst estate law jurists concerns the level of compliance with statutory requirements wills undergoing probate must meet. In recent years, several Canadian provincial jurisdictions have updated their formal requirements for the validity of wills, signaling a widespread shift from the strict to the substantial compliance doctrine. The debate over strict versus substantial compliance highlights two opposing attitudes courts can take when applying their jurisdiction’s wills, trusts, and estates laws. Strict compliance proponents argue that it prevents courts from overstepping their roles to infer the deceased’s testamentary intentions. Those in favour of substantial compliance claim their framework allows courts to truly serve the fixed and final intentions for the disposition of a decedent’s estate.

Newfoundland and Labrador is one of two Canadian jurisdictions still functioning under a strict compliance framework. Other provinces like Nova Scotia and British Columbia have enacted much more flexible substantial compliance legislation, with room in the jurisprudence to clarify the scope of this power. Other provinces like Prince Edward Island have adopted a middle ground, advocating for partial compliance legislation that still requires the testator to have met certain statutory requirements in order for a document to be probated. For more than 20 years, Ontario was a holdout on enacting substantial compliance legislation. In April 2021, the legislature passed Bill 245 – the Accelerating Access to Justice Act, adding Section 21.1(1), its version of a substantial compliance provision, to the Succession Law Reform Act (the “SLRA”). On January 1, 2022, the new regime came into effect.

Sills v. Daley: The Court’s Previously Unwavering Adherence to Strict Compliance

The new legislation is significant to testators and beneficiaries. It opens the door not only to individuals worried that their loved ones did not leave fully valid testamentary documents, but also to new scores of litigation over improperly executed wills with conflicting instructions on estate disposal. What is apparent, however, is that a case like Sills v. Daley, 2003 CanLII 72335 (ON SC) would be decided differently today under the new guidance. Daley, the decedent, signed a will revoking a previous will soon before her death. The new will instructed that, instead of Daley’s house going to one of her children, it be divided equally amongst all of them. However, Daley did not properly execute the new will, as it was signed by only one witness, despite more than two being in the room with her while she signed the new document. The SLRA required testators have two or more attesting witnesses.

The Court ultimately found it could not validate the second will because it had no discretion to do so without an existing substantial compliance provision. In Daley, the consequences meant a lack of equity for all of the testator’s beneficiaries despite clear evidence of her testamentary intent. Section 21.1(1) of the SLRA will hopefully mitigate this problem. In  his seminal 1975 article on substantial compliance, Professor John H. Langbein wrote, “The rule of literal compliance… is a snare for the ignorant and the ill-advised, a needless hangover from a time when the law of proof was in its infancy.” A recent case from 2021, Re: Lacroix Estate, 2021 ONSC 2919, was decided mere months before the enactment of the new substantial compliance legislation. The Court followed as strict an approach as it did almost 20 years prior in Daley, declining to validate a part-holographic part-handwritten document for probate. If an application for letters probate were made for Rebecca Lacroix’s estate today, one could imagine a markedly different outcome.


Only time will tell how the Court will exercise its newfound discretion under Section 21.1(1) of the SLRA. Future jurisprudence will be instructive on how the Court sees its curative powers—with the conservative outlook of Alberta’s partial compliance requirement, or the flexibility of British Columbia’s Wills, Estates, and Succession Act. The actual provision, labeled “Court-ordered validity,” reads:

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.

Future considerations may be whether the Court, pursuant to this provision, will validate electronic wills, unsigned documents, and edits to previously existing wills. The clearest way to avoid protracted litigation over issues of statutory noncompliance is to ensure that any non-holographic document a testator writes or edits is signed in front of witnesses. Until a case presenting new facts reaches the Court, Ontario practitioners will not have much guidance.

As Ontario learns to incorporate substantial compliance into their legal landscape, they will likely draw from other provinces’ existing cases and principles. To read about how other jurisdictions have treated substantial compliance in their jurisprudence, check out these articles :


British Columbia



For the pitfalls of substantial compliance and how to avoid them, check out this article.

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