Substantial Compliance — When Canadian Courts Save a Botched Will

A 47-year-old man in Kelowna types a complete will on his laptop, including bequests, an executor appointment, and a residue clause. He saves it as "WILL FINAL.docx" and emails it to himself. He never prints it, never signs it. He dies of an unexpected heart attack three months later. His common-law partner of twelve years discovers the document on his laptop and applies under section 58 of BC's Wills, Estates and Succession Act for an order validating it as his will. The court reviews the file metadata, his texts to friends describing the document, and his recent search history for online will services. After a 90-minute hearing, the court grants the order. The unsigned, unwitnessed Word document is treated as a valid will from that point forward.

That outcome — a court rescuing a clearly intentional but formally invalid will — is what most Canadian provinces' substantial compliance regimes are now built to allow. The mechanism exists in most provinces, though not all, and in none of the three territories. The threshold each court applies, and the fact patterns each will accept, vary considerably.

The two old worlds — strict compliance and substantial compliance #

Until roughly 1990, every common-law province in Canada was a strict compliance jurisdiction. A will that failed any signing formality — missing a witness, signed in the wrong order, signed below the witnesses' signatures rather than above, witness leaving the room before the testator signed — was void. Period. Even when the deceased's intent was unambiguous, the courts had no authority to fix the document. The will was invalid; intestacy applied; the testator's expressed wishes were ignored.

Manitoba was the first province to break ranks, in 1983, adopting what was then called a "dispensing power" allowing courts to validate non-compliant testamentary documents. South Australia and several US states had pioneered the concept in the 1970s. Most of the rest of Canada followed over the next four decades. By the late 2010s, most common-law provinces except Ontario had a version of the rule — but Newfoundland and Labrador never adopted one, and the Northwest Territories still has not.

Ontario was the last major common-law holdout. Bill 245 (the Accelerating Access to Justice Act, 2021) added section 21.1 to the Succession Law Reform Act, effective January 1, 2022.^[1] That left Newfoundland and Labrador as the only common-law province without a curative power; the three territories — the Northwest Territories, Yukon, and Nunavut — remain without one too.

What the courts actually look for #

The statutory language varies, but the test is broadly similar across provinces. The court must be satisfied that the document or writing represents the testator's deliberate (or "fixed and final") testamentary intention. The test is not whether the testator considered the document at some point — it must reflect a settled, considered decision about how the estate should pass.

Three factors that consistently move courts:

The form of the document. A document titled "Last Will and Testament", organized in legal-looking clauses, signed (even imperfectly) by the testator, is closer to validation than a casual handwritten note. The structural cues matter even when the formal requirements are not met.

The surrounding circumstances. Letters or texts to family discussing the document. A meeting with a lawyer where the document was reviewed. A draft that was emailed back to the testator with revisions. Each surrounding-circumstance fact builds the case that the document was deliberate.

Whether the testator had the chance to formalize and did not. A document drafted weeks before death, with no time to print and sign, reads as the testator's best effort under the circumstances. A document drafted years before death and never executed despite ample opportunity reads more like a draft the testator abandoned.

The court does not rewrite the document. If the document is genuinely incomplete — gaps in the residue clause, missing beneficiary identifications, contradictory instructions — substantial compliance will not paper over those defects. It saves wills that are technically defective in their execution, not wills that are substantively defective in their content.

Province-by-province summary #

The exact statutory framing differs by province. The practical effect is broadly similar.

British Columbia (WESA s 58).^[2] The most expansive substantial-compliance regime in Canada. Section 58 lets the court order that a record, document, or writing be effective as a will, even though it does not comply with WESA, if the court is satisfied the record represents the testamentary intentions of a deceased person. BC courts have validated text messages, electronic documents, and handwritten notes under this provision.

Ontario (SLRA s 21.1).^[1] Effective January 1, 2022. The Ontario Superior Court may order that a document or writing not properly executed is valid and fully effective as the will of the deceased if the court is satisfied that the document or writing sets out the testamentary intentions of the deceased. Applies only to deaths on or after January 1, 2022. Early case law has been cautious but the doctrine is now well-established.

Alberta (Wills and Succession Act s 37).^[3] The court may, on application, order that a writing be considered a valid will or revocation of a will, even if it does not comply with formal requirements, if the court is satisfied — on clear and convincing evidence, a higher bar than the "balance of probabilities" standard used in BC and Ontario — that the writing sets out the testamentary intentions of the deceased. (Section 38 of the same Act is a narrower, related provision covering alterations to an existing will.)

Saskatchewan (Wills Act, 1996, s 37). Substantial compliance for documents not properly executed, applied liberally by Saskatchewan courts since the 1990s.

Manitoba (Wills Act s 23). The original Canadian dispensing power, in place since 1983. Continues to be applied flexibly.

New Brunswick (Wills Act s 35.1). Substantial compliance regime added through statutory reform in the 2000s.

Nova Scotia (Wills Act s 8A, added 2008). Court can order that a writing not duly executed be effective as a will if the writing reflects the testamentary intentions of the deceased.

Newfoundland and Labrador — no curative provision. NL is one of only two Canadian common-law jurisdictions that never adopted a dispensing power. It remains a strict-compliance jurisdiction: a will that misses a formal execution requirement is not valid, no matter how clear the testator's intent, and the gap can only be closed by the legislature, not the courts.

Prince Edward Island. PEI has a general dispensing power under its Probate Act, but it does not require the same degree of formal compliance as the "substantial compliance" label elsewhere implies, and the regime has been applied conservatively.

Territories. None of the three territories has enacted a general curative power. The Northwest Territories, Yukon, and Nunavut all remain strict-compliance jurisdictions — a non-compliant document is not a will, full stop — as does Newfoundland and Labrador among the common-law provinces.

The cases that actually get saved #

Recent Canadian case law has validated wills in fact patterns that would have failed twenty years ago. A few representative examples:

In Re Hubschi Estate, 2019 BCSC 2040, the BC Supreme Court validated an unsigned electronic document found on the deceased's home computer as his will under section 58 of WESA.^[4] The deceased had created the document weeks before his death, had emailed himself a copy, and had recently discussed the will with family members.

In Ontario, several decisions under section 21.1 since 2022 have validated documents missing one of the two required witness signatures, where the missing witness's identity could be confirmed by extrinsic evidence and the signing ceremony had otherwise been conducted properly. In Marsden v Hunt et al, 2024 ONSC 1711, the court validated a will missing one witness signature after the missing witness — a law clerk at the firm that drafted the will — swore an affidavit confirming she had witnessed the execution.^[5]

Manitoba courts have validated suicide notes, where the note contained clear dispositive language and identified the testator's beneficiaries by name.

BC courts have validated text messages — typically only where the message is detailed enough to constitute a coherent disposition, not casual messages.

The pattern across these cases: the courts will save a will that fails formality if intent is unambiguous. The courts will not save a will that fails substance.

The cases that do not get saved #

Equally important is the category of documents the courts have declined to validate:

Casual notes that read more like wishes than instructions ("if anything happens to me, I'd like Bob to have my coin collection") generally fail. The court requires deliberate testamentary intent, not a passing wish.

Documents that contradict more recent executed wills. A 2019 unsigned draft cannot resurrect to override a 2021 properly-signed will.

Documents with substantive gaps the court cannot fill — incomplete beneficiary lists, ambiguous residue clauses, missing executor appointments — generally fail unless the gap is obviously a clerical omission.

Documents created by people under apparent capacity concerns, where the court has doubts about whether the testator understood the disposition at the time the document was prepared.

The economic case for getting it right the first time #

A substantial-compliance application typically costs the estate $8,000 to $30,000 in legal fees and adds six to eighteen months to the probate timeline. The application has to give notice to every person who would inherit under intestacy (or under a prior will) and to anyone who might oppose the validation. Contested applications are more expensive again.

By comparison, a complete properly executed Canadian will from a lawyer costs $400 to $700. An assisted-will service produces a properly executed will for under $200. The math is not subtle.

The legal availability of substantial compliance is good news for families dealing with the unexpected — the sudden death, the will that was almost finished, the document that was never quite formal enough. It is not, however, a reason to be casual about execution. The doctrine is a backstop, not a strategy.

What we focus on at It's Simple Will #

It's Simple Will generates wills designed for proper first-time execution — clear signing instructions, witness availability checks, an affidavit of execution included by default. The product is built to make substantial compliance unnecessary for the people who use it.

For the foundational rules on Canadian wills, see our pillar on how to write a will in Canada. For related execution issues, see how to sign a will in Canada, witnessing a will in Canada, and ambiguous wording in a will.