Oops, I Blew the Formalities: A summary of cases to date on the Court’s validating powers under s. 21.1 of the SLRA

  • October 13, 2023
  • Krystyne Rusek and Matthew Bradley, Speigel Nichols Fox LLP

As most estate practitioners are aware, up until January of 2022, there was no way of saving testamentary documents that failed to meet the formal requirements set out in the Succession Law Reform Act ("SLRA"). Bill 245, passed in 2021, added section 21.1 to the SLRA, which provided a validating power to judges of the Superior Court to remedy situations where the formalities of execution had not been met.  The section, which only applies where the testator has died on or after January 1, 2022, states as follows:

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. [1]