What is Substantial Compliance?

Can an Invalid Will Ever Be Saved?

Traditionally, Ontario law required strict compliance with the formal requirements for making a valid Will. If those requirements were not met, the document would generally be considered invalid, regardless of the deceased's intentions.

In recent years, however, Ontario law has evolved through the introduction of the doctrine of "substantial compliance."

Under section 21.1 of the Succession Law Reform Act, the Court now has the authority, in certain circumstances, to validate a document or writing that does not strictly comply with all of the formal legal requirements for a Will.

In simple terms, this means that a document may potentially be recognized as a valid Will even if it was not properly witnessed or executed, provided the Court is satisfied that the deceased intended the document to set out their testamentary wishes.

The doctrine was introduced in recognition of the fact that individuals do not always follow the technical requirements of Will-making perfectly. In some situations, strict compliance with those requirements could result in a person's genuine intentions being defeated by a relatively minor procedural error.

That said, substantial compliance should be viewed as an exception rather than the rule.

Whether a document will be validated under the doctrine depends entirely on the specific facts of each case. Courts will carefully examine the nature of the document, the surrounding circumstances, and the available evidence regarding the deceased's intentions.

As a result, applications involving substantial compliance can often become complex, uncertain, and expensive. What may appear to be a straightforward expression of testamentary wishes can ultimately require significant Court involvement before its legal effect is determined.

For this reason, substantial compliance should not be viewed as a substitute for proper estate planning. A professionally prepared and properly executed Will remains the most reliable way to ensure that your wishes are carried out after death.

The doctrine of substantial compliance serves an important purpose in Ontario estate law. However, it is best understood as a safeguard for exceptional circumstances rather than an alternative to following the usual legal requirements for a valid Will.

If you would like assistance updating your Will or reviewing your Estate Plan, please book your FREE CONSULT with Tonelli Estate Law today.

***This article is for general informational purposes only and does not constitute legal advice***