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Monday, April 8, 2019

Curative power of the court allows a will to be probated even though it contains an error

All wills must comply with the formal signing requirements set down in the provincial wills law. A will that has an error or missing words is called non-compliant with the legislation and normally cannot and will not be accepted by the probate court as a valid will.

However, some provinces have laws that allow a judge to fix a will that has defects in the signing or witnessing that might otherwise cause the will to be invalid. These laws are known as curative provisions. In a province with this type of legislation, you can send a will to probate even if it has a mistake on the basis that the will is substantially compliant on the law. In other words, you're saying that even though the will isn't perfect, it should still be admitted to probate.

Your point would be that the will is substantially or mostly compliant except for one element. You would be claiming that the missing date or the signature in the wrong place or the mixed-up numbering of paragraphs was simply a logistical error that should not impact a will that otherwise contains the wishes and instructions of the deceased. The idea behind it is to do everything possible to give effect to the deceased's wishes.

As with any court application, you cannot get what you want just by asking for it. You have to prove your case. Wills can be held to be valid even though they don't strictly comply if there is clear evidence that the testator meant the document to be his or her will and that the document contains the testator's intentions. Whether you are attacking the will or defending it, you must consider what evidence exists of what the testator intended.

When you are asking the court to use the curative provisions, the nature of the mistake is important. Was it simply a typo made by a secretary that nobody noticed at the time? Was a wrong name put into the document? Was a line or word left out? Some mistakes are considered worse than others. In Canada, the courts have fixed mistakes such as those mentioned in this paragraph, but so far they have refused to declare unsigned wills as being valid.

The purpose of the curative legislation is to ensure that a will does not fail and all of a testator's plans collapse because of a technical mistake.

The provinces and territories that have curative provisions are AB, BC, MB, NB, NS, NU, PEI and YK.

This post is excerpted from my book Contesting a Will Without a Lawyer: The DIY Guide for Canadians, which you can get in print or e-book by clicking here.

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