The Court of Appeal for Ontario’s decision in Hejno v. Hejno, 2025 ONCA 876, provides further direction on the approach to applications for validating deficient testamentary documents under s. 21.1 of the Succession Law Reform Act (“SLRA”).
Although the Court refrained from articulating a final or comprehensive legal test under the substantial compliance regime, it set aside the validation of unsigned draft wills and emphasized the need for reliable evidence that the document in question expresses the testator’s fixed and final intentions.
Overview of the Testamentary Documents
The deceased, John Jeffrey Hejno, died in May 2024. His estate planning history included:
- 1. A formally executed 2018 will, which created a spousal trust for his long‑term partner, Jennifer, and a family trust for his grandson.
- 2. Primary and secondary wills executed in December 2022, which altered the structure of gifts but were witnessed by only one person, and therefore did not comply with formal execution requirements.
- 3. Unexecuted draft wills prepared in 2024, which incorporated slip sheets altering corporate shareholdings, which were neither initialled nor signed and contained inaccuracies.
After John’s death, Jennifer sought to validate the 2024 drafts under s. 21.1 of the SLRA. The application was unopposed, and the application judge validated the drafts without releasing reasons.
The appeal was brought by John’s children, grandson, and former spouse, with the 2018 will only coming to light after the application judge’s order and the filing of the appeal.
Admission of the 2018 Will as Fresh Evidence
Applying the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, the Court admitted the 2018 will. The Court found:
- 1. The will was relevant and credible.
- 2. The appellants could not, with reasonable diligence, have discovered it earlier.
- 3. Its contents could affect the result on the validation application.
The Court noted that the existence of a properly executed prior will may weigh against validating later imperfect documents, particularly where the evidentiary record does not establish a clear and deliberate departure from the earlier testamentary plan.
Invalidity of the 2024 Draft Wills
The Court set aside the validation of the 2024 drafts for several reasons:
- 1. They were wholly unexecuted and therefore lacked even imperfect compliance with statutory formalities.
- 2. The drafting solicitor’s affidavit established that John remained undecided about material components of his estate plan as late as April 2024. This undermined any assertion that the drafts represented a fixed and final testamentary intention.
- 3. The slip sheets were inaccurate and unsigned, creating reliability concerns.
- 4. The absence of reasons from the application judge removed the usual constraint of appellate deference.
In combination, the evidentiary deficiencies precluded a finding that the 2024 drafts expressed John’s final testamentary intentions.
Remittal of the 2022 Wills’ Validity to the Superior Court
Jennifer asked the Court of Appeal to validate the 2022 wills. The Court rejected that request.
The Court held that the validation inquiry is fact‑intensive and often dependent on extrinsic evidence, including evidence bearing on intention and credibility. As the application judge made no findings, and as there were conflicting affidavits on material issues, the Court concluded that it could not resolve the matter at the appellate level.
The Court identified several issues requiring determination at first instance, including:
- questions concerning the execution of the 2018 will;
- inconsistencies between Jennifer’s account and the affidavits of the accountant and solicitor; and
- the need for potential testimonial evidence.
The Court also observed that related estate and oppression proceedings were ongoing. A remittal would allow the Superior Court to address overlapping factual matters collectively and avoid inconsistent findings.
Key Takeaways
1. The decision demonstrates that validation under s. 21.1 of the SLRA requires clear and reliable evidence of fixed testamentary intention. Drafts reflecting ongoing indecision or containing inaccurate or unverified insertions will not satisfy the statutory threshold.
2. The decision illustrates the importance of ensuring that all known testamentary documents (including prior wills) are put before the court in any validation application.
3. The evidence of drafting professionals remains particularly important. Where solicitor evidence demonstrates that instructions were incomplete or unsettled, courts will be cautious in concluding that a draft document expresses final intention.
4. The Court’s decision not to validate the 2022 wills at the appellate level confirms that validation applications will generally require a full evidentiary record and will not be suitable for first‑instance determination on appeal.
Conclusion
Hejno v. Hejno reinforces the careful and methodical approach required when seeking to validate imperfectly executed testamentary documents. While s. 21.1 of the SLRA offers flexibility in appropriate cases, that flexibility is constrained by the need for persuasive evidence that the document reflects the testator’s fixed and final intentions.
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