Ontario’s curative provision, section 21.1 of the Succession Law Reform Act, R.S.O. 1990 c. S.26 (“SLRA”) is the only way to remedy testamentary documents that fall short of statutory formalities but still appear intended to function as wills.
Under the SLRA, a formal will must meet the requirements set out in section 4, in that it must be signed by the testator and in the presence of two witnesses, who must also sign the will themselves in the presence of the testator. If a will is unwitnessed, it can also be validated under section 6 of the SLRA as a holograph will, provided the substantive content and signature are entirely in the testator’s handwriting. Additional lee-ways for valid wills for members of the military is also set out under section 5 of the SLRA. If a will does not meet the requirements under any of these three SLRA validation mechanisms, this has historically been the end of the analysis.
However, section 21.1 gives the courts the discretionary, curative power to validate a non‑compliant “document or writing” that does not meet the requirements of a formal, holograph, or military will, if it is satisfied that the document sets out the deceased’s testamentary intentions.
The courts, in turn, are often asked to determine whether a will is a promising misfire, or a hopeless near miss. Many are handwritten, some are typed, and a few may even exist in the purgatory of one’s email inbox in draft form. The following cases illustrate the courts’ comfort level in applying section 21.1 thus far.
Handwritten Documents: The Court’s Comfort Zone
Groskopf v. Rogers et al., 2023 ONSC 5312
The document was an undated, unwitnessed, pre‑printed form completed by the deceased in her own handwriting. It failed nearly all requirements in subsection 4(2) as the existence of the pre-printed sections ran contrary to the principal that a holographic will must be wholly in the hand of the testator. Nonetheless, the Court validated it under section 21.1 because the key content was handwritten, the document expressly stated it was her will, it identified executors and set out a full distribution plan, and there was no indication it was intended to be a draft. These factors established testamentary intention.
Allan et al. v. Thunder Bay Regional et al., 2024 ONSC 3260
This case involved an unwitnessed, handwritten codicil intended to alter an earlier formal will by replacing the executor and changing the residuary beneficiary. The codicil in question did not meet the requirements under section 6 of the SLRA due to the absence of the testator’s signature. The Court validated the document under section 21.1 because it was entirely handwritten, explicitly referred to the prior will, made deliberate changes, and was consistent with the testator’s broader estate plan.
Electronic Documents: Finding the Boundaries
In contrast to handwritten documents, electronic documents present more difficulty. Section 21.1 is expressly subject to section 31 of the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (“ECA”), which excludes wills and codicils from the ECA’s electronic‑signature and electronic‑document equivalency rules. As such, courts must instead assess intention using traditional principles as illustrated by the following decisions.
Madhani v. Fast, 2025 ONSC 4100
The deceased reviewed and approved a draft will that had been emailed by his solicitor to him the night before he was scheduled to sign it. He died before execution. The Court refused validation under section 21.1 because the document remained an unsigned draft. Approval of wording did not amount to a final testamentary act, and the ECA prevented reliance on electronic‑signature rules. The planned execution the next morning confirmed the draft was incomplete.
This approach to draft wills is consistent with other applications of section 21.1 where the ECA is not at issue – see, for example, our prior blog post summarizing Hejno v. Hejno, 2025 ONCA 249.
Gebremariam v. Menghesha, 2026 ONSC 545
An email attachment titled “Nabute’s Will” set out a complete estate plan and ended with a typed “Signed: Nabute Ghebrehiwet.” It lacked a physical signature and witnesses. The Court acknowledged the inapplicability of section 4 but held that an electronic file can still be a “document or writing” under section 21.1. While the ECA bars treating the typed name as a signature, it does not prevent the Court from considering the document as evidence of intention. The key question becomes whether the electronic document independently demonstrates a final testamentary act and is authentic. This case has been analyzed in more depth in a previous Hull & Hull blog post which you can read here.
The Emerging Pattern
Three themes run through this case law:
- Handwriting remains a strong indicator of intention.
Handwritten documents create a direct link between the testator and the content, often demonstrating deliberateness and finality even if the document does not meet the requirements under section 6. - Drafts remain drafts.
Approval of an emailed draft does not constitute a final testamentary act. Death interrupting the execution process does not transform an incomplete document into a will. - Electronic wills are possible, but only on evidence – not technology.
Courts may validate an electronic document if it independently satisfies section 21.1’s intention and authenticity requirement. However, the ECA prevents the use of electronic‑signature rules to cure formal defects.
Conclusion
Section 21.1 can rescue a will that stumbled, but not one that never stood up in the first place. When a document reflects a completed testamentary act, whether handwritten or electronic, the curative provision may apply. Where the document is only a draft, unfinished, or the evidence does not support final intention, the Court will not supplement missing formalities through section 21.1.
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