Ontario’s will validation power has a noteworthy limitation – it cannot be used to validate electronic wills. Subsection 21.1(2) of the Succession Law Reform Act is titled “No electronic wills”, and states that the will validation power is “subject to section 31 of the Electronic Commerce Act, 2000”, a provision which confirms that the ECA does not apply to wills and codicils, or trusts created by wills or codicils. Given the language used in subsection 21.1(2), it is not surprising that the Ontario Superior Court of Justice recently refused to validate a draft will in Madhani v Fast, 2025 ONSC 4100 that had been emailed to the client as an attachment.
The deceased in Madhani was a retired university professor – he died the morning that he was scheduled to attend his lawyer’s office to finalize and execute his will. Prior to his death, the deceased’s niece acted as an intermediary between the deceased and his lawyer. In fact, when a second draft of the will was complete, the niece, rather than the deceased, emailed the lawyer to provide additional details regarding two gifts, and also told the lawyer that “[e]verything else looks good”. Once the lawyer emailed a third draft of the will to the niece, an appointment was booked for the deceased to meet with the lawyer and finalize and execute the will. Neither the deceased nor the niece made any comments to the lawyer regarding the third draft of the will prior to the meeting.
Since the draft will had not been executed, the estate applied to validate it. Notwithstanding the fact that the application was unopposed, the will could not be validated because it only existed “as an electronic document stored in Word document format”. In reaching this conclusion, Justice Sanfilippo reviewed what an electronic document is “within the meaning of s. 1(1) of the ECA,” confirming that the draft will satisfied the definition of “electronic” therein. Since there was no evidence that a physical copy of the draft will had been created, it could not be validated.
Another reason section 21.1 could not be applied to validate the draft will was because the evidence did not establish that it reflected the deceased’s fixed and final testamentary intentions. The fact that the deceased never signed the draft will was quite salient. Even though the deceased’s signature is not a pre-condition to the application of the court’s curative power, Justice Sanfilippo noted that the absence of a signature does have consequences: “The farther that the proffered document is removed from the formality requirements set out in the SLRA … the more difficult the task for the Applicant to meet the onus of establishing that a declaration should be rendered under s. 21.1[.]” The court also noted that the deceased’s signature will go “a long way to determining whether the testamentary intentions set out in the document are the testator’s deliberate or fixed and final intentions”, recognizing that “[t]he act of affixing a signature is a big step for a layperson planning for wealth transfer on death.”
The fact that the deceased’s niece had told the lawyer that “everything else looked good” with the second draft of the will also was not helpful – the court refused to admit this evidence because it was hearsay. It also could not be admitted under the principled exception to the admission of hearsay evidence. Even if the statement could be admitted, however, the will still could not be validated, as Justice Sanfilippo noted that the statement was not equivalent to an expression of deliberate, or fixed and final intention, particularly given that the will was subsequently revised. Moreover, there was no evidence establishing that the deceased had reviewed the final draft of the will or approved its contents after it was revised. Prior to the execution meeting, the lawyer took no steps to confirm that the final draft of the will accurately set out the deceased’s fixed and final testamentary intent, and there was also no prior meeting between the deceased and the lawyer that could stand in as a proxy, in which the lawyer had assessed the deceased’s final intentions.
This case offers a number of valuable lessons to wills and estates practitioners:
- If a draft will is not printed, it likely cannot be validated. Therefore, when providing a final draft of a will to a client for review, it may be wise to send a print version of the will in the mail. Alternatively, if the will is sent via email as an attachment, counsel could instruct the client to print the draft will before reviewing it.
- If counsel is communicating with an intermediary at the client’s request, counsel may want to make it their practice to contact the client directly before booking an appointment to execute the will, to ensure that the will reflects the client’s wishes.
- It may be advisable to suggest that the client sign a draft will prior to the execution meeting, so long as the client does not want to make any further changes to the draft will. This action would simply confirm that the client approves of the document’s contents, and that it reflects their fixed and final intentions.
Thank you for reading, and enjoy the rest of your day!
Ian.