A few years ago, we blogged about the idea that an electronic will, which, although invalid under Ontario laws, could nonetheless be validated through the resealing process if the electronic will was valid in another jurisdiction. For discussion on that topic, please see Suzana Popovic-Montag’s blog posted on June 5, 2024.
Since then, Ontario has incrementally moved toward the acceptance of electronic wills. A notable step in this direction was taken in the recent decision in Gebremariam v. Menghesha, 2026 ONSC 54 (“Gebremariam”).
The application in Gebremariam concerned the validation of a testamentary document under s. 21.1 of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”). The testamentary document at issue was an electronic file sent by the deceased to his sister by email titled as the deceased’s Will. The document was entirely computer‑generated and concluded with the typed words “Signed: Nabute Ghebrehiwet”, the testators name. The document was not manually signed by the testator, nor witnessed (paras. 2 to 4).
To be clear, this decision did not have the effect of validating the electronic testamentary document – rather, it addressed the question of whether the application for validation was prevented from progressing by reason that the document was an electronic Will given that ss. 31(1) of the Electronic Commerce Act, 2000, SO 2000, c 17 (the “ECA”), states that wills and codicils cannot be created or executed electronically.
The applicant submitted that there is an important distinction between creating an electronic will and validating an electronic document as a will While the ECA prevents the electronic execution of a will, counsel for the applicant argued that it does not restrict the Court’s authority to validate such a document using the doctrine of substantial compliance (para. 9).
The Court agreed. Justice Corthorn undertook a detailed comparison of the language in the SLRA and the ECA and concluded that there was in fact, no prohibition on validating an electronic will under s. 21.1 (para. 31). The Court applied the statutory interpretation framework established by the Supreme Court of Canada – specifically, reading the acts in their entire context, and harmonious with the scheme and objective of the acts and the intention of the legislature (paras. 17-21, citing to Bell ExpresdssVu Limited Partnership v. Rex, 2002 SCC 42, Imperial Oil Lt. v. Canada, 2006 SCC 46, and R. v. Brown, 2022 SCC 18).
The Court determined that, when read as a whole, the ECA ‘s main purpose is to enable the creation of legally effective electronic documents and avoiding consequences at the creation stage (paras. 34-40). Given that the SLRA does not define “writing” or “document” as used in s. 21.1 to exclude electronic documents, the Court concluded that exclusion of wills in the ECA reflects a refusal to deem electronic wills automatically valid, but not a prohibition on their later validation under s. 21.1 of the SLRA (paras. 33; 40-44). Practically, this meant that the ECA does not regulate or restrict the Court’s remedial authority to validate noncompliant testamentary documents (para. 42).
Justice Corthorn further reviewed the jurisprudence interpreting section 21.1 since its introduction in 2022, and set out that, for the Court to validate a document under s. 21.1, they must be satisfied that (1) the document is authentic and (2) document represents the testator’s deliberate or fixed and final intention regarding the disposition of property on death (para. 108). The Court determined that, absent the prohibition on validating an electronic will under the doctrine of substantial compliance, the most significant barrier to the applicant was establishing the authenticity of the document (paras.110 to 112). In this respect, the Court noted that the fact that the testamentary document in question was provided to the applicant via email from the testator themselves (para. 59). Accordingly, the application could proceed to a hearing on the merits.
Above all, Gebremariam demonstrates the potential power of section 21.1 of the SLRA and marks another development in the jurisprudence on the treatment of electronic testamentary documents in Ontario. We think it is safe to say that as estate litigators, we can expect more decisions on this issue over the next couple of years – including, hopefully, a final determination on whether the document is Gebremariam is validated under s. 21.1.
Thanks for reading!