Substantial Compliance: The Court's Curative Power Has Limits

In June 2025, my colleague, Michael G. von Keitz, wrote a blog titled '1,270 Days Later: The Sequel to Substantial Compliance in Ontario'.

His blog reviewed a trio of cases (Salmon v Rombough, 2024 ONSC 1186, O'Neill Estate, 2024 ONSC 2228, and Urback v Canadian Cancer Society et al., 2025 ONSC 3313) each of which further clarified the boundaries of substantial compliance legislation in Ontario (subsection 21.1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the "SLRA") gives the court the discretion to validate a testamentary document that was not properly executed or made under the SLRA).

In the two months that have transpired since my colleague's blog, the Ontario Superior Court of Justice (the "Court") has released two more decisions, both providing useful guidance about when the Court will step in (or not step in) with its curative powers:

1) Form, not Substance

In Mio v. Bergvall et al, 2025 ONSC 3919, the deceased's ("Janet") spouse, William Mio ("William") brought an application to validate the dispositive provisions of the Janet Nelson Trust (the "Trust") as a testamentary document pursuant to section 21.1 of the SLRA.

Janet had most of her assets in Minnesota. She had two assets in Ontario: a property and a bank account. She had a complex estate plan which included the Trust, a Will ("Janet's Will"), and an amendment to the Trust.

Janet's Will contained a 'pour-over' clause (a clause directing estate assets into an existing trust to be managed on the trust's terms) - these are valid in Minnesota but not in Ontario if the clause directs the residue of an estate to an amendable or revocable trust (see Vilenski v. Weinrib-Wolfman, 2022 ONSC 2116 and for further reading, my colleague, Nicholas André's blog, Poring Over Pour-over Provisions: Caution if Your Will Gifts to an Existing Trust).

William conceded that the 'pour-over' clause in Janet's Will could not be enforced and sought for the Court to validate it. While the application was unopposed, ultimately, Justice Fitzpatrick did not validate the 'pour-over' clause stating that "[c]uring defects in form is different than curing defects in substance", and while Janet's Will is authentic and does contain her testamentary intentions, this is not a case where "Janet did not properly execute her will. The problem is much more significant"; Janet's Will creates "a problem of substance due to the operation of Ontario common law [that] cannot be cured by the provisions of section 21.1(1)".

2) Physical Documents, not Electronic Documents

In Madhani v. Fast, 2025 ONSC 4100, the deceased ("Jamshed"), engaged a lawyer (the "Lawyer") to update his Will prepared in 2021 (the "2021 Will"). He died the day he was scheduled to sign the updated Will (the "Draft Will").

Of note, Jamshed's niece (who Jamshed had consented to acting as an intermediary in communications with the Lawyer) had e-mailed the Lawyer, provided the outstanding information required for the Draft Will, and advising that Jamshed reviewed the Draft Will and that it was fine and that he would come by to sign when the Draft Will was finalized. The Lawyer implemented the changes and e-mailed the final version of the Draft Will to the niece. There was no further communication from Jamshed or the niece prior to the scheduled signing appointment.

The niece's husband (appointed as the estate trustee in the 2021 Will and the Draft Will) sought directions as to whether the Draft Will was valid and effective as a testamentary document.

Justice Sanfilippo found that the Draft Will failed to meet the very first test of authenticity. While the Draft Will was authentic in the sense that it was "created and preserved" by the Lawyer, the failure occurred as the Draft Will was an 'electronic document' within the meaning of section 1(1) of the Electronic Commerce Act, SO 2000, c 17 (the "ECA").

While electronic documents and electronic signatures are recognized in Ontario, this does not apply to wills and codicils (see section 31 of the ECA). Importantly, section 21.1 of the SLRA provides that it is subject to section 31 of the ECA. Justice Sanfilippo found that "[b]y operation of s. 21.1(2) of the SLRA and s. 31 of the ECA, the "document or writing" [referenced in s. 21.1(1)] cannot be an electronic document but rather must be in physical form".

The case turned on the fact that the Draft Will only existed as an electronic document and was never used in physical form at any material time. Justice Sanfilippo concluded that "[a]s an electronic document cannot be a will, and as the [Draft Will] is an electronic document, the [Draft Will] cannot be declared under s. 21.1 to be the valid and effective last will and testament...".

While the court's curative power is a valuable tool to validate testamentary documents falling short of the legal requirements, the above decisions reinforce that there are meaningful limits to this power - if the defect goes to substance, or the will isn't on paper, the court will not save it!