The introduction of section 21.1 of the Succession Law Reform Act (SLRA) provided Ontario courts with the power to validate technically deficient testamentary documents. While this court ordered validation mechanism has successfully saved signed documents with execution defects, its application to unsigned lawyer drafts remains a exceptionally high hurdle. The decision in Smith v. Bechtel, 2026 ONSC 975, highlights the strict boundary between an expression of intent and a fixed and final testamentary decision.
Timothy passed away suddenly of a heart attack on September 30, 2024. He was never married, had no children, and was estranged from his surviving siblings. Twelve days prior to his death, following a recent hospitalization, Timothy met with a drafting lawyer to prepare a will and powers of attorney. During this meeting, the lawyer took handwritten notes on a client form indicating that Timothy wished to leave specific cash legacies to his nephews, friends, and a charity, with the estate residue going to his former employee and close friend, Tammy.
On September 23, 2024, the lawyer prepared a letter for Timothy along with the draft documents, scheduling a signing appointment for October 16, 2024. The letter explicitly asked Timothy to review the drafts and advise of any changes or corrections prior to the appointment. Following Timothy’s sudden passing, Tammy found the letter and drafts unaltered at his home. She also discovered an undated document in Timothy’s handwriting that listed his assets and instructions, though it contained notable discrepancies from the draft will regarding specific legacy amounts and different named beneficiaries.
Tammy applied to have the unsigned draft will validated under section 21.1(1) of the SLRA. Justice Muszynski dismissed the application, concluding that the draft will could not be validated. The court’s analysis emphasized that general expressions of intention regarding how a testator wants property distributed are insufficient on their own to ground a valid will. The fatal flaw in the applicant’s case was the complete lack of evidence that Timothy had ever actually reviewed or approved the specific draft text prepared by his lawyer.
Furthermore, the lawyer’s accompanying correspondence explicitly treated the drafts as a work in progress, inviting changes before the execution date. The timeline to provide feedback had not yet expired when Timothy died. Given the discrepancies between Timothy’s independent handwritten notes and the initial instructions given to the lawyer, the court noted that individuals frequently change or reconsider their choices during the estate planning process.
Smith v. Bechtel provides essential guidance on the limits of section 21.1 of the SLRA. The validating power cannot be used to give legal effect to incomplete estate planning or preliminary
instructions. For practitioners and clients alike, the decision reinforces that a draft will remains a mere expression of intent until there is clear evidence that the testator reviewed and adopted the specific wording as their final decision.
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