Electronic evidence is playing an increasingly prominent role in estate litigation. In recent years, courts have considered videos of wills being executed,[1] audio recordings of testators discussing their testamentary wishes,[2] social media posts,[3] and emails and text messages.[4] As electronic evidence becomes more common, it is important for counsel and the courts to be cognizant that such evidence cannot always be accepted at face value. Recent technological advancements, particularly in generative AI, have made electronic evidence vulnerable to fabrication or manipulation, raising significant questions about its authenticity, reliability and evidentiary weight. Even the Ontario Court of Appeal has acknowledged this danger, noting that trial judges “need to be careful in how they deal with electronic evidence … There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is.”[5]
Estate litigation may be especially vulnerable to the impact of fabricated electronic evidence, since the one person best placed to speak to the deceased’s true intentions, and to the authenticity of any electronic record attributed to them, is no longer available to give evidence. This article considers the threshold that electronic evidence must satisfy to be admitted and then explores a particular risk that could arise in will challenges – the use of electronic evidence that is not genuine to satisfy the minimal evidentiary threshold.
The Threshold for Admitting Electronic Evidence
Under section 34.1 of Ontario’s Evidence Act, an electronic record is not admissible unless it is authenticated.[6] Subsection 34.1(4) expressly places the burden on the person seeking to introduce the record to prove its authenticity through “evidence capable of supporting a finding that the electronic record is what the person claims it to be.”
In order to authenticate an electronic record, it is not necessary to prove that the record is genuine.[7] Rather, the party putting that evidence forward only needs to provide some evidence capable of supporting the conclusion that the electronic record is what it is claimed to be,[8] such as the affidavit of a witness.[9] Nor must an electronic record meet a “standard of proof like the balance of probabilities or beyond a reasonable doubt in order to be admitted into evidence.”[10]
Once electronic evidence has been authenticated, it may also be necessary to consider its integrity, if the best evidence rule applies.[11] In the context of electronic records, this rule focuses on the integrity of the system on which the electronic record was stored, and whether the record has been altered or tampered with in a way that affects its integrity.[12] Subsections 34.1(5) and (5.1) of the Evidence Act provide that the best evidence rule is “satisfied on proof of the integrity of the electronic record” through evidence of the integrity of the electronic records system or the use of reliable encryption techniques.[13] Under subsection 34.1(7), the integrity of electronic records may also be presumed under a number of circumstances, in the absence of evidence to the contrary.[14]
However, satisfying the best evidence rule and the authentication requirement does not necessarily establish that the content of an electronic record is genuine. In R v Medow, for example, Justice Jones expressly acknowledged that fabricated evidence like “a deepfake video could be ‘authenticated’ by a witness who might honestly but mistakenly believe it to be an accurate depiction of the events it purports to represent.”[15] He noted further that a witness could intentionally deceive the court by claiming that evidence is authentic while knowing, in fact, that it is not.[16] Similarly, in R v Martin, the Newfoundland and Labrador Court of Appeal noted neither the authentication of electronic evidence nor the presumption of system integrity under the best evidence rule addresses concerns about who actually authored an electronic communication.[17]
Since the risk that electronic evidence may have been fabricated, even if it satisfies the admissibility requirements, will not render such evidence inadmissible,[18] its reliability ought to be assessed carefully when determining its ultimate weight.[19]
Could Fabricated Electronic Evidence Satisfy the Minimal Evidentiary Threshold?
The relatively low threshold for admitting electronic evidence raises a particular concern in the context of will challenges. Could electronic evidence be used to satisfy the minimal evidentiary threshold, notwithstanding the possibility that the evidence has been fabricated or manipulated?
Before a will challenger may obtain discovery tools like disclosure, the challenger must first satisfy the minimal evidentiary threshold. Similar to the authentication threshold that electronic evidence must satisfy to be admitted, a person seeking to challenge a will must simply “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded.”[20] Importantly, it is not necessary to prove that the evidence put forward to satisfy the threshold is true – it simply must support the will challenge if accepted at a hearing.[21]
If a will challenger wishes to rely on electronic evidence to satisfy the minimal evidentiary threshold, or the propounder of the will wants to submit electronic evidence in response, the opposing party may challenge its admissibility under section 34.1 of the Evidence Act.[22] Evidence submitted at the minimal evidentiary threshold stage must comply with other evidentiary rules, including the corroboration requirement under section 13 of the Evidence Act[23] and the presumptive inadmissibility of hearsay evidence.[24] It also appears that the court could potentially raise the issue of authentication of its own motion.[25]
If the applicable admissibility requirements are satisfied, there appears to be no reason in principle why electronic evidence could not be used to satisfy the minimal evidentiary threshold. This possibility creates several difficulties. First, permitting electronic evidence that is untested to satisfy the minimal evidentiary threshold may undermine the overarching purpose of the threshold – screening out meritless will challenges and preventing estates from being “exposed to needless expense and litigation.”[26] If a will challenge is permitted to proceed based on electronic evidence that is subsequently found to have been fabricated, the minimal evidentiary threshold will fail to fulfill its screening function.
Second, it appears that there may be limited opportunity at the minimal evidentiary threshold stage to challenge the genuineness of electronic evidence that has been admitted. As previously noted, when determining whether electronic evidence is admissible, it is not necessary to prove that the evidence is genuine, nor can its admission be prevented based on suspicions that it may be fabricated. [27] Given that it is also unnecessary to prove that the evidence relied upon to meet the minimal evidentiary threshold is true, it is unclear to what extent concerns about the genuineness of electronic evidence could be explored at the minimal evidentiary threshold stage.
Challenging Electronic Evidence at the Minimal Evidentiary Threshold Stage
So, what is a party to do if, at the minimal evidentiary threshold stage, it appears that the opposing party is relying on electronic evidence that has been admitted but may be fabricated? There are at least three potential strategies.
Challenge Its Admissibility
Depending on how a party seeks to authenticate their electronic evidence, it may be possible to prevent its admission. If, for example, affidavit evidence is intended to authenticate the electronic evidence, cross-examination on the affidavit may demonstrate that the authentication criteria have not been satisfied. Alternatively, in an appropriate case, it may also be possible to lead evidence to overcome circumstantial evidence presented in order to authenticate an electronic record.[28] Where the best evidence rule applies, counsel should also consider whether it is possible to challenge the integrity of the electronic record.
Contradict the Electronic Evidence
Where fabricated or altered electronic evidence is suspected, the opposing party ought to lead evidence contradicting the electronic evidence if possible, preferably from multiple sources. While there is a risk that the court may allow the will challenge to proceed if there are conflicts in the parties’ evidence that cannot be fairly resolved on the record,[29] the court also has the power to reject a party’s evidence if it prefers the evidence of the other party or the evidence of a witness.[30] The court has the power to engage in a limited weighing of the evidence at the minimal evidentiary threshold stage in order to determine whether the evidence adduced by the will challenger has been answered by the propounder.[31] Accordingly, electronic evidence may not necessarily be accepted for the purpose of determining whether the minimal evidentiary threshold has been met, even if it is admissible.
Challenge Credibility and Reliability
In an appropriate case, it may be possible to challenge the credibility of the party or witness adducing the electronic evidence.[32] In Giann v Giannopoulos, Justice Myers observed thatsome assessment of credibility is involved at the minimal evidentiary threshold stage,[33] and the Ontario Court of Appeal subsequently affirmed that it is open to a judge to find that the threshold has not been met where there are credibility and reliability concerns arising from the evidence adduced by the challenger.[34] Accordingly, where there are reasons to doubt the credibility of a witness adducing electronic evidence, those concerns may provide a basis for arguing that the electronic evidence should not be accepted for the purpose of satisfying the minimal evidentiary threshold.[35]
A more difficult question is whether the reliability of the electronic evidence itself can be challenged at this stage. Currently it is unclear what tools are capable of reliably identifying fabricated or manipulated electronic evidence,[36] aside from expert digital forensics evidence,[37] and there appears to be no precedent for submitting expert evidence at the minimal evidentiary threshold stage.
Conclusion
In many ways, the growing use of electronic evidence in estate litigation is a welcome development: it can shed genuine light on a testator’s intentions, notwithstanding the testator’s inability to speak for themselves. However, because electronic evidence is vulnerable to fabrication and manipulation, and need not be proven as genuine to satisfy the relatively low authentication threshold to be admitted, there is a risk that fabricated evidence could be used to satisfy the minimal evidentiary threshold governing will challenges, particularly since the evidence relied upon need not be proven true.
Practitioners acting on either side of a will challenge should remain alert to this risk. Where electronic evidence is put forward to satisfy the threshold or, alternatively, to answer a will challenge, it is worth considering:
- whether the electronic evidence satisfies the applicable admissibility requirements;
- whether other evidence is available to contradict the electronic evidence;
- whether there is a basis to challenge the credibility of the party or witness adducing the electronic evidence; and
- whether the reliability of the electronic evidence may be impugned.
As the case law in this area continues to develop, it is imperative that both courts and counsel remain alive to the possibility that electronic evidence may not be what it purports to be, even if it satisfies the admissibility requirements under the Evidence Act.
[1]See Carinci v Carinci, 2023 ONSC 6094; Schell Estate (Re), 2018 ABQB 991. See also Ian Hull, “Answering a Will Challenge with Video Evidence” (20 December 2023), online: (blog) <https://hullandhull.com/2023/12/answering-a-will-challenge-with-video-evidence/>.
[2]See Peraziana v Savage, 2024 ONSC 217; Rempel Estate v Dudley, 2020 BCSC 1766.
[3]See Somers Estate (Re), 2025 ABCA 372.
[4]See Paige v Noel, 2025 BCCA 358.
[5]R. v. Aslami, 2021 ONCA 249 at para 30 [Aslami]. This danger has also been addressed in news coverage with respect to criminal law – see Betsy Powell, “An Ontario man was jailed for eight months over faked Facebook messages from his ex-wife. Why courts are struggling to spot them” Toronto Star (4 August 2026), online: <https://www.thestar.com/news/gta/an-ontario-man-was-jailed-for-eight-months-over-faked-facebook-messages-from-his-ex-wife-why-courts-are-struggling-to-spot-easy-fakes/article_8d8bb089-27f0-45c3-827f-fad133b6521b.html> [Powell].
[6]Evidence Act, RSO 1990, c E.23, s 34.1 [Evidence Act]. A similar standard is also imposed under the Canada Evidence Act, RSC 1985, c C-5, s 31.1.
[7]R v Martin, 2021 NLCA 1 at para 49 [Martin]; R v Medow, 2025 ONCJ 661 at para 47 [Medow].
[8]Colbert v Colbert, 2023 ONSC 811 at paras 32–35 [Colbert]; Lenihan v Shankar, 2021 ONSC 330 at para 217 [Lenihan].
[9]Colbert, ibid at para 35. Where the evidence is a video or audio recording, the operator of the camera or recording device may authenticate it: see Aware Ads Inc v Walker, 2022 ONSC 5543 at para 29 [Aware Ads]; Head v John Doe, 2026 BCSC 184 at paras 43–44 [Head].
[10]Martin, supra note 7 at para 49.
[11]It will not always be necessary for electronic evidence to satisfy the best evidence rule: see Colbert, supra note 8 at para 41.
[12]Martin, supra note 7 at para 55. See also Lenihan, supra note 8at para 220.
[13]Evidence Act, supra note 6, ss 34.1(5), (5.1). Martin, ibid,notes that the best evidence rule can be satisfied through witness testimony addressing whether the content of an electronic document has been altered or whether the system on which it was stored was functioning properly: at para 57.
[14]Evidence Act, ibid, s 34.1(7). See Lenihan, supra note 8 at para 219.
[15]Medow, supra note 7 at para 55.
[16]Ibid.
[17]Martin, supra note 7 at para 73.
[18]Head, supra note 10 at para 44.
[19]Medow, supra note 7 at para 55.
[20]Neuberger v York, 2016 ONCA 191 at para 89 [Neuberger].
[21]Giann v Giannopoulos, 2023 ONSC 5412 at paras 18, 25, aff’d 2024 ONCA 928 [Giann]; Zarin-Mehr v Shokrai, 2024 ONSC 1754 at para 26(b).
[22]Evidence Act, supra note 6, s 34.1. See, for example, Colbert, supra note 8 at paras 31–36.
[24]Rogers v Ferretti, 2026 ONSC 2210 at para 46.
[25]DeGiorgio v DeGiorgio, 2020 ONSC 1674 at para 18.
[26]Neuberger, supra note 20at paras 88, 122.
[27]R v Flett, 2026 ABKB 296 at para 54.
[29]Seepa v Seepa, 2017 ONSC 5368 at para 39.
[30]See Johnson v Jonson, 2022 ONCA 682 at paras 13–14 [Johnson]; Giann ONCA, supra note 21at para 30.
[32]Whitfield v Glover, 2024 ONSC 1266 at para 113.
[33]Giann ONSC, supra note 21at paras 20–21.
[34]Giann ONCA, supra note 21 at para 24.
[35]Betsy Powell quotes Matthew Gourlay on this point; see Powell, supra note 5.
[36]In Medow, supra note 7 at para 72, Justice Brock noted that “[w]hile there are ongoing efforts in the scientific community to develop tools for courts to identify deepfakes,” it appears that “they have not yet come to fruition”. See also Head, supra note 9, where the court placed no weight on an AI-generated report suggesting that video evidence was a deepfake, as there was nothing in the record to verify the methodology used or otherwise assess the validity of the machine-generated opinion.
[37]See, for example, Aslami, supra note 5.