Since section 21.1 of the Succession Law Reform Act was enacted in 2022, a variety of non-compliant testamentary documents have been validated as wills, including will documents not even signed by the deceased: see, for example, Kertesz v Kertesz, 2023 ONSC 7055 and Allan et al. v. Thunder Bay Regional et al., 2024 ONSC 3260. Notwithstanding such case law, it remains unclear whether Ontario’s will validation power can be used to save unsigned draft wills. Justice Myers has expressed concern about this particular issue multiple times, and the related issue of whether the hope of coming across a draft will could justify an application to access a lawyer’s estate planning file for a deceased person. This issue arose in 2023 in White v White, 2023 ONSC 7286, and was recently revisited in Allison v. McBride, 2025 ONSC 2828.
The primary issue put to the court in Allison was whether the deceased’s lawyer could be compelled to disclose his client’s estate planning file to the deceased’s surviving spouse, who was searching for potential documents to submit for validation under section 21.1. While the deceased had consulted with his lawyer regarding a new will shortly before he passed away, a new will had not been finalized.
The deceased’s lawyer responded to the application as a non-party, asserting solicitor-client privilege on behalf of his deceased client. When the application was heard, the deceased’s solicitor-client privilege could not be waived since no estate trustee had been appointed yet to administer the deceased’s estate.
Justice Myers ultimately dismissed the application to disclose the lawyer’s file in light of solicitor-client privilege. While there is a wills exception to solicitor-client privilege, Justice Myers only recognized two circumstances where this exception applies – if a will has been signed by the deceased, or in a case like White, where there is evidence confirming that the deceased’s lawyer “had a document that was a fixed and final expression of the testamentary intention of the deceased”. The court declined to extend the exception to a scenario where a possible beneficiary tries “to ascertain whether the deceased might have left enough documentary or written breadcrumbs to line a path to recognition of a document ‘as valid and effective as the will of the deceased’ under s. 21.1 of the SLRA.”
As noted by Justice Wilson in Geffen v Goodman Estate, 1991 CanLII 69 (SCC), the wills exception to solicitor-client privilege has been utilized historically in order to ascertain the deceased’s true intention in the face of a will challenge, or when there is a question of how the deceased’s final will should be interpreted. Justice Myers explained that under such circumstances, privilege has been waived on the assumption that the deceased person, having released a document from the confidential lawyer client relationship which expresses their testamentary intent, “would want everyone to know what his or her true intentions were”. In other words, it is assumed thatthe deceased would give access to their lawyer’s file, if necessary, to ensure that their intentions were carried out.
When examining a lawyer’s file where the deceased has not actually signed a will, however, there is no principled basis to invade the client’s privacy, in that there is no reason to presume the deceased would want their lawyer’s file to be disclosed. In fact, the deceased person may not want their intentions to be shared if they were still deciding how to distribute their estate. As noted by Justice Myers:
“Estate conversations about distributions of one’s assets among loved ones are among the most intensely private conversations imaginable that one can have with one’s lawyer. Clients are under an assurance that these conversations are protected and surrounded by the thickest curtain of nearly inviolable lawyer client privilege.”
Another argument raised by the applicant was that “it should not be left to the [deceased’s] lawyer to decide if he or she has a document that is producible as an exception to privilege”. However, this argument was moot, as Justice Myers confirmed that the role of the deceased’s counsel is not to decide whether or not a document is producible – rather, counsel’s role is to “assiduously protect the client’s privilege unless or until it is waived by someone with due authority to do so or a court determines that privilege does not apply.”
While the court was not asked to determine in this case whether a draft will can be validated under section 21.1, Justice Myers took the opportunity to address his issue briefly in Allison,questioning (in obiter dicta) whether “a draft will in a lawyer’s hands” could ever be considered “final”, as required under section 21.1:
“To me, ‘final’ means a finished product that expresses the outcome of a decision-making process. A draft will is always subject to amendment up to the moment of signing by a testator.
I do not know if s. 21.1 is intended to have judges decide when someone who sat with a lawyer but did not sign a will should be taken to have intended that an unsigned draft is to be given effect.”
It will be interesting to see how the court grapples with these concerns in future cases. Thank you for reading, and have a wonderful day!