Since section 21.1 of the Succession Law Reform Act came into force on January 1, 2022, the Superior Court of Justice has issued a growing body of decisions interpreting the scope and application of Ontario’s will validation power. Until recently, however, the Ontario Court of Appeal had not weighed in.
That changed with Hejno v Hejno, 2025 ONCA 876 – the Court of Appeal’s first decision interpreting section 21.1. While the Court expressly declined to “definitively determine” the legal test for will validation, this case nevertheless provides important guidance for practitioners regarding when an order validating a will is entitled to deference, and the importance of providing sufficient evidence to obtain validation, even when an Application is unopposed.
Background Facts
The testator in Hejno died leaving behind a complicated estate plan that included multiple testamentary documents created over several years; specifically:
- a will that was properly executed in 2018;
- a primary will and secondary will signed in 2022, but witnessed by only one person – the testator’s accountant; and
- an unsigned draft primary and secondary will created in 2024, based on the 2022 primary and secondary wills.
Each of these documents established a spousal trust for the testator’s common-law spouse. However, there were significant differences with respect to other testamentary dispositions. While the 2018 will created a family trust to benefit the testator’s grandson and also left the residue of the estate to the grandson and one of the testator’s sons, the 2022 and 2024 “wills” did not include a family trust. Under the later wills, the grandson also would not receive any interest in the estate until after the testator’s spouse had passed away.
The Section 21.1 Application
Following the testator’s death, his spouse brought an unopposed Application under section 21.1 of the SLRA seeking to validate the 2024 draft wills. In the alternative, she asked the court to validate the 2022 wills, even though the originals could not be found. Her materials did not reference the 2018 will.
The Application judge granted the Application validating the 2024 draft wills, but provided no reasons for the decision. The evidentiary record before the court consisted of Affidavit evidence from:
- the Applicant spouse;
- the accountant who witnessed the testator’s signature on the 2022 wills; and
- the lawyer who assisted with the preparation of the 2024 draft wills.
The evidence before the court was also conflicting. On one hand, the Applicant spouse swore that the testator did not start to get his affairs in order until late 2021, and wanted to get an appointment immediately in 2024 to sign a will he had ready. The lawyer’s evidence, on the other hand, was that the testator remained indecisive and never provided final instructions for this will before his death.
The Appeal
Despite the lack of opposition to the will validation Application, a number of the testator’s family members appealed, arguing that the evidence demonstrated that his testamentary intentions were still in flux when the 2024 draft wills were prepared. After filing the appeal, the appellants also learned of the existence of the 2018 will.
The Court of Appeal allowed the appeal, making the following determinations.
1. 2024 Draft Wills Were Invalid
The Court of Appeal overturned the order validating the 2024 draft wills, noting that because the Application judge provided no reasons, his decision was not entitled to deference. The Court also confirmed that, even when a will validation Application is unopposed, the court still must ensure that the document submitted truly reflects the deceased’s testamentary wishes.
Considering the collective evidence before the Application judge, the Court of Appeal concluded that validation was inappropriate, noting in particular that:
- the 2024 draft wills could not be taken as an expression of the testator’s testamentary intentions, as the drafting lawyer’s evidence demonstrated ongoing indecision about his estate plan;
- the 2024 draft wills were not executed in any way; and
- there was also doubt as to the reliability of slip sheets attached to the 2024 draft wills that addressed the testator’s corporate interests.
2. 2018 Will Admitted as Fresh Evidence
The Court of Appeal also admitted the 2018 will as fresh evidence, observing that its existence could weigh against validating the non-compliant instruments “in the absence of a cogent explanation for the change in distribution” of the testator’s estate,citing the British Columbia Court of Appeal’s decision in Hadley Estate (Re), 2017 BCCA 311.
3. Validity of 2022 Wills Remitted to the Superior Court of Justice
Lastly, the Court of Appeal remitted the matter back to the Superior Court of Justice to determine the validity of the 2022 wills. While the testator’s spouse asked the Court of Appeal to decide their validity on appeal, the Court declined, emphasizing that “[a]ppellate courts rarely engage in first-instance fact-finding,” particularly when essential factual findings or reasons are lacking. Moreover, to undertake such an inquiry, the Court of Appeal recognized that it would be required to “make findings on a matter not addressed by the application judge which involves conflicting evidence that may implicate credibility and require testimony.”
Practical Takeaways for Estate Litigators
While the Ontario bar will have to wait longer for the Court of Appeal to confirm the legal test for will validation under section 21.1, Hejno offers several important practice points:
- Unopposed does not mean unexamined
Courts must still be satisfied, on a balance of probabilities, that a document satisfies the criteria under section 21.1 in order to exercise the will validation power, even where no party objects. - Final intention is critical
Evidence of indecision, ongoing drafting discussions, or unresolved instructions can be fatal to a will validation Application, particularly if the document is unsigned. - Earlier wills matter
The existence of any prior, properly executed testamentary instruments should be disclosed on a will validation Application, as a failure to explain significant changes in the distribution of the testator’s estate may weigh against validation.
Thank you for reading – we wish you a safe and enjoyable holiday season!
Suzana.