In October 2023, my colleague Karen Watters wrote about the addition of section 21.1(1) to the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). Section 21.1(1) provides the Court with the power to validate a will or a document as valid and fully effective even if it does not comply with the regular requirements for formal execution, such as having a signature and two witnesses. However, there remain limits to the Court’s power. In the recent decision of Madhani v. Fast, 2025 ONSC 4100, Justice Sanfilippo (who sits on the Toronto Estates List) found that an unsigned draft will could not be validated pursuant to section 21.1(1) of the SLRA because it was an electronic will.
The Deceased died on November 10, 2023. He was survived by an ex-spouse, two adult children, five siblings, and several nieces and nephews. The Deceased executed a last will and testament on November 26, 2021 (the “2021 Will”), which appoints the applicant as the estate trustee. The validity of the 2021 Will was not challenged.
In December 2022, the Deceased retained a lawyer to act for him in the preparation of an updated last will and testament (the “2023 Draft Will”). He enlisted the help of his niece, Neha, to do so. Neha contacted the drafting solicitor to advise that the Deceased had asked her to assist in advancing the preparation of his new will. The drafting solicitor then obtained the Deceased’s instructions, by teleconference, that she could speak with Neha regarding his new will.
On January 20, 2023, the Deceased sent to his lawyers, by telefax, three pages of handwritten notes, written on the letterhead of the department of anthropology of the university where he formerly taught. The Deceased and his lawyer spoke via teleconference to review the three pages of notes. A first draft of the 2023 Draft Will was sent to the Deceased by regular mail on April 4, 2023.
Revisions to the first draft of the 2023 Draft Will were sent to the drafting solicitor on August 3, 2023, and the drafting solicitor met with the Deceased on October 4, 2023 to review the requested changes to the will. This was the only time that the Deceased met with the drafting solicitor in person. The drafting solicitor then forwarded a second draft of the 2023 Draft Will to Neha on October 15, 2023 with questions as to two issues. On October 28, 2023, Neha sent the drafting solicitor an email providing clarification on those two issues and wrote that she had met with the Deceased and “went over the will” and that “[e]verything else looks good – let me know when final will can be signed and we’ll arrange to come by.” Those changes were implemented by the drafting solicitor and she sent Neha the third and final draft of the 2023 Draft Will that same day by email.
Sadly, the Deceased then died on the morning that he was scheduled to attend the drafting solicitor’s office to finalize and execute the 2023 Draft Will.
Since the 2023 Draft Will was unsigned, it was not a valid will in accordance with the requirements of execution under section 4 of the SLRA. As a result, the applicant brought an application for directions with the Court seeking a determination of whether the 2023 Draft Will is valid and effective as a testamentary document pursuant to section 21.1 of the SLRA. If valid and effective, the 2023 Draft Will would revoke the 2021 Will.
The test for validating a document under s.21.1(1) is two fold. First, the document or writing must be shown to be authentic. Second, the non-compliant document must represent the deceased’s deliberate or fixed and final expression of intention as to the disposal of property on their death. The analysis under s. 21.1(1) is markedly fact-specific. Importantly however, section 21.1(2) of the SLRA states that the section does not apply to “electronic” wills. If the document is considered to be electronic, the analysis ends there and it cannot be validated regardless of whether it satisfies the test under s. 21.1(1). The Court explained that:
“Section 21.1(1) is not available to electronic documents. Section 21.1(2) provides that subsection 21.1(1) is subject to s. 31 of the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (the “ECA”). Section 31(1)(1.) of the ECA specifically exempts its application to “wills and codicils”, and s. 31(1)(2.) exempts its application to “trusts created by wills and codicils”.”
The 2023 Draft Will was considered to be an “electronic” will, because it only existed in a Word document format on the drafting solicitor’s computer directory. While the first draft of the 2023 Draft Will was sent to the Deceased by mail, the final draft was only ever provided to Neha in electronic form. There was no evidence that the final draft of the 2023 Draft Will was used in physical form at any material time. As a result, the Court had no choice but to find that the 2023 Draft Will could not be declared valid under s. 21.1.
