A properly signed and witnessed will is not automatically invalid if it’s missing the date. We recently navigated a unique situation where a Will was signed and witnessed correctly, but the exact day of execution in March 2014 was left blank, reading "the ____ day of March 2014." Despite this omission, the court granted a Certificate of Appointment, affirming the Will’s validity. In this blog, I explain how we drafted the probate application and what this outcome reveals about probate applications and Will formalities.
Ontario’s Will Formalities and the Missing Date
In Ontario, the fundamental requirements for a valid Will are outlined in the Succession Law Reform Act (“SLRA”). Section 3 of the SLRA requires that a valid Will be in writing (interpreted as typed, printed or written on paper), and section 4(2) requires that the Will be signed at the end by the testator (or by someone else in their presence and by their direction), with two or more witnesses present at the same time who also sign the Will in the testator's presence.
Notably, the SLRA does not include the date of execution as a mandatory requirement for a valid Will. However, a separate and distinct regime exists for International Wills and can be found in the SLRA, which is not the subject of this blog, but I will note quickly. Section 42 of the SLRA incorporates the Uniform Law on the Form of an International Will (a treaty-based framework arising from the 1973 Washington Convention) which imposes considerably stricter formalities than those required for an ordinary Ontario will. Among these, Article 7 mandates that the date of an International Will must be the date on which the authorized person (in Ontario, a lawyer) signs the Will, and that this date must be formally noted at the end of the Will by that authorized person. So, while a missing or imprecise date will not necessarily invalidate an ordinary Ontario will, it could be significant to that same document's validity as an International Will.
In our case, the Will met the essential requirements: it was in writing, signed by the testator, and attested by witnesses. So, we were confident the Will was valid under the SLRA. But the SLRA isn't the only body of law that matters. The Rules of Civil Procedure govern the procedural requirements for a Will's administration and proof in court. Specifically, Rule 74.12(4) states: "If a will is not dated or is dated imperfectly, the date of execution may be established by the evidence of an attesting witness or, where the evidence as to the date of execution cannot be obtained, evidence that the execution took place between two specific dates or that a search has been made and no will that could be of a later date has been found."
At first read, I found it very confusing why Rule 74.12(4) was in place if the date wasn’t required for a Will’s validity. But further research and consideration clarified the real purpose was not about validity, it's about identification. The court needs to know whether the Will being submitted is the deceased's last Will. That's why Rule 74.12(4) requires evidence of the approximate date and confirmation that a search for other Wills was done.
This also helped me to understand why the probate application provides a spot for you to input the Will’s date in Part 2 (Information About the Deceased’s Testamentary Documents) and asks: “If the date for a Will or codicil is missing, explain here or in an attached schedule how the date was determined:” Here is how we answered the question for our Will with the missing date:
The Probate Application
In the "Date of Will" section under Part 2 of the application, we wrote "03-2014." Under the missing-date question in Part 2, we wrote:
“The date for the Will is documented here as 03-2014 and March 2014 on other documents because the Will was imperfectly dated, specifically the exact day in March 2014 on which the Will was executed was not completed on the document. To determine that the date of execution took place between March 1, 2014 and March 31, 2014, an attesting witness, [Name Redacted], confirmed in [their] Affidavit of Execution that upon refreshing [their] memory and reviewing [their] calendar, [they are] confident that the date of execution was between March 1, 2014 and March 31, 2014, although [they] cannot confirm the exact day.”
This approach is consistent with Rule 74.12(4) of the Rules of Civil Procedure stated above.
We also drafted an affidavit of execution with one of the attesting witnesses, which included the clause: “I acknowledge and recognize that the Will was dated imperfectly, as the specific day in March 2014 on which it was executed was not completed on the document. Upon reviewing my calendar and refreshing my memory, I am confident that the date of execution was between March 1, 2014 and March 31, 2014, although I am unable to confirm the exact day. Pursuant to subsection 74.12(4) of the Rules of Civil Procedure, I am an attesting witness and provide this affidavit evidence to confirm that the Will was executed between March 1, 2014 and March 31, 2014.”
A similar statement was included in the applicant's affidavit. While restating the law in multiple parts of the application may seem excessive, we did so to ensure the point was clearly communicated and to minimize the risk of the confusion by the court.
Ultimately, we are pleased to share that the Certificate of Appointment was granted. As such, going forward, this will be our approach (or something similar) for future applications where the date is imperfect or missing.
The Court’s Approach
The court's decision to grant the Certificate of Appointment despite the incomplete date demonstrates a focus on the testator's clear testamentary intentions and the overall proper execution of the Will. Since the SLRA does not mandate a complete date for validity, and the approximate timing could be established through evidence, the missing day was not a fatal flaw. The court was satisfied that the document represented the deceased's true last Will.
I suspect that if the Will had been missing the date entirely (not just part of it), it would likely have been considered valid without extra steps as well, so long as no other Will was found that would require us to prove which Will was the last. I'll have to make a part two if that Will crosses my desk.
Broader Context: Validating Defective Wills
This outcome aligns with a broader trend in Ontario law to uphold testamentary intentions where possible, even when there are formal deficiencies. Section 21.1 of the SLRA grants the Superior Court of Justice the power to validate a document as a Will (or as a revocation, alteration, or revival of a Will) even if it was not properly executed, provided the court is satisfied that the document sets out the deceased's testamentary intentions. (This provision applies to deaths occurring on or after January 1, 2022.)
A recent case, Groskopf v. Rogers et al (2023 ONSC 5312 (CanLII)), illustrates this principle. In Groskopf, the court validated an undated and unwitnessed document as a Will under Section 21.1, finding that it represented the deceased's fixed and final testamentary intentions. While our case involved a less significant deficiency (an incomplete date rather than an unwitnessed document) and did not require a Section 21.1 application, the underlying judicial willingness to look beyond strict formal compliance to give effect to a testator's wishes is consistent.
Key Takeaways
This probate application underscores the importance of clearly explaining any unusual aspects of a Will such as a missing or imperfect date, and highlights the different roles of the SLRA and the Rules of Civil Procedure in probate applications.
