The decision in Madhani v. Fast, 2025 ONSC 4100, addresses a scenario that is always a concern: a client provides instructions, the lawyer completes a draft will, the signing meeting is scheduled, but the client dies before the execution meeting takes place. When the only version of the document is stored electronically, the question becomes whether the Court’s validating power under section 21.1 of the Succession Law Reform Act (“SLRA”) can rescue the draft. The Court’s answer in Madhani was unequivocal. Section 21.1 cannot be used to validate a document that exists only electronically because the Electronic Commerce Act, 2000 (“ECA”) expressly excludes wills from electronic recognition.
The facts illustrate how easily an electronic-document issue can arise. The Deceased executed a formal will in 2021 but later sought to revise his estate plan. He worked with a lawyer throughout 2022 and 2023, often communicating through his niece, who relayed instructions and feedback. On October 28, 2023, the drafting lawyer sent what she considered the final draft. The Deceased booked a signing appointment for November 10 and had even arranged transportation for that meeting. He died in his apartment that morning. The draft had never been printed or signed.
The estate trustee applied for a declaration validating the draft under section 21.1 of the SLRA. That provision permits the Superior Court of Justice to validate a document not executed in compliance with the formal requirements if it sets out the testamentary intentions of the deceased. Section 21.1(2), however, makes this power subject to section 31 of the ECA. The ECA states that it does not apply to wills, codicils, or testamentary trusts. The Court concluded that this statutory exclusion forecloses any possibility of validating an unsigned electronic draft will. The document must be in physical form for validation to be legally available.
The Court’s reasoning reflects the statutory structure rather than discretionary policy considerations. The ECA’s exclusion of wills is categorical. Because section 21.1(1) operates only within the boundaries established by the ECA, any proposed document that exists solely in digital form falls outside the scope of the Court’s authority. The decision in Madhani therefore clarifies that the validating provision cannot be stretched to accommodate the practical realities of electronic drafting and modern communication. Legislative reform would be required to change this outcome.
The Court also considered the application on the alternative basis of testamentary intention. To validate a document, the Court must be satisfied that it reflects the deceased’s deliberate, fixed, and final intention. This test derives from George v. Daily, 1997 CanLII 17825 (MB CA), and has been consistently used in Ontario cases interpreting section 21.1. The Court found that the evidentiary record did not establish such intention. The Deceased never reviewed the final draft privately with his lawyer. The lawyer’s standard practice was to conduct a direct, final review at the execution meeting, which did not occur. The only communication confirming the contents of the draft came from the niece, not the Deceased. Without a signature or the opportunity for a final review, the Court concluded that the draft lacked the qualities of a final expression of intention.
The difference between Madhani and other cases where the Court has validated imperfect wills underscores the importance of physical documents and direct evidence. In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, the will was invalid for lack of witness signatures, but it existed physically and clearly expressed the testator’s intentions. The Court validated it. In Vojska v. Ostrowski, 2023 ONSC 3894, the will was missing one witness signature, but it was physically executed and clearly authentic. The Court validated it. Both cases satisfied the requirement that the proposed document be in physical form and reflect fixed and final intention. Madhani failed on both points.
This decision has immediate consequences for practitioners. First, lawyers should ensure that draft wills expected to form the basis of an urgent or imminent signing meeting are reduced to physical form. Printing the final draft and providing it to the client may mitigate the risk associated with unexpected incapacity or death, particularly where scheduling constraints exist. Second, practitioners should ensure clear and direct communication with the client regarding final approval of draft language. Reliance on intermediaries creates evidentiary weaknesses that can undermine later validation efforts. Third, estate trustees reviewing a deceased person’s electronic devices should be aware that digital materials cannot, under existing legislation, be validated as wills.
The case also highlights a broader structural issue. Electronic wills are recognized in several jurisdictions, including British Columbia, Queensland, and multiple U.S. states. Ontario’s legislative framework, however, has not yet incorporated mechanisms for recognizing electronic wills or drafts. Section 21.1 allows substantial compliance with formal requirements but cannot override the ECA. Policymakers may need to consider whether the current statutory exclusion remains appropriate in an era where most drafting is conducted electronically.
In Madhani v. Fast, the Court dismissed the application and confirmed the continuing validity of the 2021 Will. The decision provides a clear warning for practitioners and estate trustees. Without legislative reform, Ontario remains a jurisdiction where the physical form of a testamentary document remains essential. Section 21.1 offers a remedy for defects in execution but cannot convert an electronic draft into a valid will.
Thanks for reading!
David Morgan Smith and Jason Avsenik (student-at-law)