Ontario’s will validation power, set out in section 21.1 of the Succession Law Reform Act, has been in force for almost four years now. While the body of jurisprudence interpreting section 21.1 is growing, will validation case law from other jurisdictions is still often considered by the Superior Court of Justice when interpreting section 21.1, particularly jurisprudence from British Columbia. With this in mind, Paige v. Noel, 2025 BCCA 358, the British Columbia Court of Appeal’s latest decision interpreting section 58 of the Wills, Estates and Succession Act (the “WESA”), could be relevant to Ontario practitioners. The court’s decision in Paige offers significant insight into when a document expresses a deceased person’s “fixed and final intentions” for the purpose of altering their will, a requirement which must be met in both British Columbia and Ontario in order to apply the will validation power.
Background
In Paige, the deceased had a falling-out with one of the residuary beneficiaries named in her will; as a result, the deceased decided to disinherit her. In October of 2022, the deceased told the executor of her estate in text messages about how she planned to have a notary prepare a new will, and that “Jennifer is out.”
The deceased also emailed her executor after an initial meeting with the notary, noting that the notary told her that she could disinherit Jennifer immediately by destroying her existing will. However, the deceased decided not to destroy her current will given her concern that she may die before a new will could be registered.
The deceased then decided to work with a different notary and made an appointment in early November of 2022, which was later cancelled for health reasons. Then, in January of 2023, almost two months later, the deceased contacted a lawyer who was also a neighbour about retaining their firm to make a “very minor change” to her will. However, the deceased passed away shortly thereafter, before the firm had been retained.
The Chambers Judge’s Decision
Finding that the text messages and email that the deceased sent to her executor expressed a “fixed and final intention” to disinherit Jennifer, the chambers judge applied the will validation power to alter the deceased’s will.* In making this determination, the chambers judge also noted that the deceased took active steps towards formalizing her intentions prior to her death, and that her inability to make a new will was beyond her control.
Since the deceased chose not to revoke her current will due to “unwillingness to have her estate tied up if she were to die intestate,” the chambers judge also found that the deceased’s statement that her current will would stand until she got a new one made did not negate or undermine her intention to remove Jennifer as a beneficiary. Evidence given by Jennifer of loving interactions with the deceased in November of 2022, after the appointment with the second notary had been cancelled, was also deemed irrelevant.
The decision of the chambers judge was unprecedented, marking the first time that text messages and emails were used to alter a will through the will validation power in BC.
Decision Overturned on Appeal
The Court of Appeal overturned the decision of the chambers judge, finding that she erred in how she interpreted section 58 of WESA, specifically by concluding that “an unwavering stated intention” satisfied the requirement that a record, document or writing express the deceased’s “fixed and final intention.” When applying section 58, the Court of Appeal clarified that not only must the record, document or writing state the testator’s intent, but that the deceased also must have intended it to be legally operative as a will or other testamentary disposition – “[o]therwise, there would be no basis on which the document could be admitted to probate.”
In making this point, Justice Fisher quoted the Manitoba Court of Appeal’s decision in George v Daily, 1997 CanLII 17825, including a passage which expressly stated that the will validation power “cannot … make a will out of a document which was never intended by the deceased to have testamentary effect,” concluding that George “clearly establishes that a document that represents ‘a deliberate or fixed and final expression of intention’ to the disposal of property on death means that the document is intended to operate as a will or as an alteration or revocation of an existing will.”
Second, the decision was also overturned on the basis that the chambers judge did not consider all relevant extrinsic evidence of the deceased’s state of mind after she sent the text messages and email. Section 58 was not applicable because the deceased had made it clear that it was her intention that her current will remain operative until she could make a new will that removed Jennifer as a beneficiary. With this in mind, the expression of the deceased’s intention in the text messages and email were not “fixed and final,” particularly given that the record also demonstrated that the deceased was aware of the formalities of making and revoking a will.
The Court of Appeal also focused on the lack of evidence explaining why the deceased took no steps to make a new will for almost two months, before telling her neighbour in January of 2023 that she only wanted to make a “very minor change” to her will. In light of these circumstances, plus Jennifer’s evidence of warm interactions with the deceased in November of 2022, the judge’s conclusion that the deceased still intended to remove a beneficiary “was speculative” at best.
Ultimately, the Court of Appeal concluded that it was “not possible to ground a finding that the deceased’s intention did not waiver … More importantly, it is not possible to ground a finding that the deceased intended to effect this alteration by the Messages themselves, which clearly expressed an intention to do so by making a new will.”
On a related note, while Justice Fisher recognized that electronic communications like text messages and emails are included in the statutory definition of “record” under section 58 of WESA,the informality of such communications may be suggestive of impermanence rather than a legally operative testamentary intention. Even though electronic communications cannot be validated as a will in Ontario, this observation merits observation, as it can be applied to other informal written communications, like notes written on scrap paper. As noted by Justice Fisher, “care is required to properly assess whether a document that consists of informal communications … represents a deceased’s testamentary intention.”
Impact and Takeaways
For a document or writing to satisfy the will validation power, not only must it represent the testamentary intentions of the deceased person, but that intention must also be grounded in the document itself, meaning that the deceased must have actually intended the document be used to effect their fixed and final intention.
In other words, expressing an intention to change a will is not equivalent to intending that expression to be legally operative as a will or testamentary instrument.
Have a great rest of your day,
Suzana.
*The decision of the chambers judge, Kissel Estate (Re), 2025 BCSC 260, Vancouver Docket S234402, is unreported.