One of the most important questions in estate law is that if a will does not meet the required formal conditions, is it still valid?
In the past, the answer to this question was usually negative. However, with recent changes to the laws in Ontario, this situation has changed.
This case clearly shows how courts today deal with this issue.
Case Background
In the Cruz v Public Guardian and Trustee case, an individual prepares a will.
They:
- prepare the will,
- seal it,
- and deliver it along with a note to the executor.
The executor is the person entrusted with carrying out the terms of the will.
However, there was one important issue: No witness had signed the will.
The deceased was aware of this issue. For this reason, they had asked the executor to obtain witness signatures later. But before this could be done, they passed away.
Legal Question
In these circumstances, the main question is:
Is a will that has not been signed by witnesses still valid?
Legal Situation Before 2022
Under Ontario law, there were specific requirements for a will to be valid.
To better understand, the most important of these conditions were:
- The will must be signed by the individual
- The signature must be made or acknowledged in the presence of two witnesses
- Both witnesses must also sign the will
If these conditions were not met:
- The will was considered invalid
- And the estate would be distributed according to the law, not according to the individual’s wishes
This situation remained in place until the end of 2021.
Legal Change from 2022
With the amendment to the law, the approach of the courts changed.
Currently, if the formal requirements are not met, it is still possible for the will to be considered valid.
However, this depends on an important condition:
The court must be satisfied that:
- The document was actually prepared by the deceased,
- And it reflects their true wishes regarding the distribution of their assets.
In that case, the court can order that the will be enforced,
even if it is not formally complete.
Court’s Decision in This Case
After reviewing the evidence and circumstances, the court concluded that:
- The will was in fact prepared by the deceased
- Its content reflects their true intention
- And there is no serious doubt regarding the authenticity of the document
Based on this, the court decided that:
The will is valid and must be enforced.
Key Legal Points
To better understand the outcome of this case, the following points are important. These show in what circumstances the court may overlook formal defects:
- Authenticity of the document is essential
If the court is satisfied that the will was truly prepared by the deceased, the likelihood of acceptance increases. - The true intention of the deceased is decisive
The content of the document must clearly show how the deceased intended to distribute their assets. - Formal defects are not always fatal
After the legal reform, the absence of witnesses does not necessarily invalidate a will. - The purpose of the law is to respect the individual’s intention
The legislator has attempted to prevent wills from being rejected solely for technical reasons.
Conclusion
This case shows that in modern Ontario law, the primary focus has shifted from “form” to “substance and true intention.”
As a result, although compliance with formal requirements is still important, failure to comply does not always mean that a will is invalid.
Courts today attempt, as much as possible, to give effect to the true wishes of the deceased, even if the document is not formally perfect.