Substantial Compliance in Ontario — Section 21.1 of the Succession Law Reform Act
Ontario's introduction of section 21.1 to the Succession Law Reform Act in 2022 was a significant modernization of provincial wills law. It brought Ontario closer to the curative framework that British Columbia has had since 2014.
The statutory text
Section 21.1 of the Succession Law Reform Act provides (paraphrased; see official text linked below):
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.
Section 21.1(2) makes the provision subject to section 31 of the Electronic Commerce Act, 2000.
When section 21.1 applies
Death must be on or after January 1, 2022. The section was added by Bill 245, the Accelerating Access to Justice Act, 2021, with the effective date for the curative power being January 1, 2022.
For deaths before January 1, 2022, Ontario follows the prior strict formal requirements — without section 21.1's curative power. Documents that don't meet formal requirements are not valid Wills, period.
Before section 21.1 — strict formalism
Before 2022, Ontario followed strict formal requirements for Will execution under the SLRA:
- Typed Will signed by testator
- Two witnesses present at the same time
- Witnesses sign in testator's presence
OR holograph Will:
- Entirely in testator's handwriting
- Signed by testator
A document that fell short of either standard was simply not a Will. The results were sometimes harsh — testators who had clearly expressed their wishes through documents that just missed formal requirements ended up intestate or with prior outdated Wills governing.
What section 21.1 changed
The new provision gives the Superior Court discretion to validate non-compliant documents if testamentary intent is clear. The court must be satisfied that the document:
- Sets out the testamentary intentions of the deceased, OR
- Sets out an intention to revoke, alter, or revive a will of the deceased
If so, the court can order the document fully effective.
What kinds of documents can be validated
The section refers to "a document or writing." This is broad — could include:
- A draft Will not formally executed
- An informal handwritten document expressing wishes
- A letter to family or lawyer expressing intentions
- Notes or modifications to an existing Will
- Potentially electronic documents (subject to Electronic Commerce Act considerations)
The further a document departs from formal requirements, the more compelling the evidence of testamentary intent needs to be.
What the court considers
While Ontario case law on section 21.1 is still developing (the provision only took effect January 1, 2022), the analytical framework is likely similar to BC's section 58 WESA jurisprudence:
Authenticity — Is the document actually from the deceased?
Testamentary intent — Does the document represent the deceased's full, final, and fixed expression of how their property should be disposed of on death?
Both established on balance of probabilities.
Comparison to BC's section 58 WESA
Both provisions give courts power to validate non-compliant documents.
Similar:
- Court must find testamentary intent
- Discretionary power
- Apply to wide range of document types
Different:
- BC's section 58 in force since 2014; more case law
- Ontario's section 21.1 in force January 2022; case law still developing
- Specific statutory wording differs
- Specific application to electronic documents differs
Both Ontario and BC are converging on a substantial compliance approach; older strict formalism is gradually being modernized across Canadian common-law jurisdictions.
Electronic Commerce Act interaction
Section 21.1(2) makes the provision subject to section 31 of the Electronic Commerce Act, 2000. Generally, section 31 of the Electronic Commerce Act addresses how electronic equivalents relate to traditional Wills requirements.
Ontario also enacted O Reg 129/20 specifically addressing signatures in Wills and Powers of Attorney during the COVID-19 pandemic. This regulation permits virtual witnessing of Wills and powers of attorney by audio-visual communication technology (provided at least one witness is a lawyer or paralegal at the time), with signing done on counterpart copies. It does not permit electronic signatures — a wet signature is still required.
Practical takeaway — virtual witnessing of Wills in Ontario is permitted in specific circumstances, but true electronic execution (e-signatures) is not; consult a lawyer for specific advice.
Practical implications
For testators
Don't rely on section 21.1 as substitute for proper execution. Section 21.1 is a backstop. Properly executed Wills avoid the litigation and uncertainty of a section 21.1 application.
If you've made testamentary instructions outside a formal Will, be aware those might be cured under section 21.1, but cases will be fact-sensitive.
For executors and family of post-2022 deaths
If a non-compliant document exists that clearly expresses the deceased's wishes, section 21.1 application is now possible in Ontario. Consult an Ontario estate lawyer.
Application is to Superior Court of Justice — specific procedural requirements apply.
For pre-2022 deaths
Section 21.1 doesn't apply. Prior strict formal requirements govern. Non-compliant documents are simply not Wills.
Procedural considerations
A section 21.1 application requires:
- Application to Superior Court of Justice
- Affidavit evidence about the document and the deceased's intent
- Notice to potentially affected persons
- Court hearing
- Specific costs
Specific to circumstances; specific procedural rules apply.
What we focus on at It's Simple Will
The Will Creator produces properly executed Ontario Wills following formal SLRA requirements. Section 21.1 is a backstop for cases where formal execution went wrong — we aim to make formal execution easy enough that the backstop isn't needed.
Related guides
Citations & sources
- [1]Succession Law Reform Act, RSO 1990, c S.26 — Government of Ontario / CanLII
- [2]Bill 245, Accelerating Access to Justice Act, 2021 — Legislative Assembly of Ontario
- [3]Government of Ontario — Succession Law Reform Act — Government of Ontario
- [4]O Reg 129/20 — Signatures in Wills and Powers of Attorney — Government of Ontario / CanLII
Frequently asked questions
What does section 21.1 of the SLRA do?
Gives the Ontario Superior Court of Justice authority to validate a document or writing that wasn't properly executed under the SLRA, as long as the court is satisfied the document sets out the deceased's testamentary intentions. The court can order the document fully effective as a will, will alteration, will revocation, or will revival.
When did section 21.1 take effect?
Section 21.1 applies to deaths on or after January 1, 2022. Deaths before that date are still governed by the prior strict formal requirements without the curative provision.
What's the bill that added it?
Bill 245, the Accelerating Access to Justice Act, 2021. The bill made several modernizing changes to Ontario estate law, including section 21.1 (curative validation) and other amendments to the SLRA.
How does this compare to BC's section 58 WESA?
Similar concept — both give courts power to validate non-compliant documents that represent testamentary intent. BC's section 58 has more case law developed (in force since 2014); Ontario's section 21.1 is newer (effective 2022) and case law is still developing. Both require the court to be satisfied about testamentary intent.
What about electronic wills under section 21.1?
Section 21.1 is subject to section 31 of the Electronic Commerce Act, 2000. Electronic documents aren't excluded from section 21.1 but the interaction with electronic commerce legislation creates specific considerations. Ontario also enacted O Reg 129/20 specifically addressing signatures in wills and powers of attorney (during pandemic-era changes).
Should I rely on section 21.1 instead of proper execution?
No. Section 21.1 is a backstop, not a substitute for proper execution. A properly executed Will avoids the litigation, cost, and uncertainty of a section 21.1 application. Use the curative provision only when something has gone wrong, not as a planning strategy.