Today’s blog has been written by David C. Rosenbaum, Partner, at Fasken LLP

Subsection 21.1(1) of the Succession Law Reform Act (SLRA) permits the Superior Court of Justice to validate a document or will that was not properly executed or made under the Act, if the deceased died after January 1, 2022, and the Court is satisfied that the document or will “sets out the testamentary intentions of a deceased”.

A recent (July 10) decision of Justice Sanfilippo, Madhani v. Fast, 2025 ONSC 4100, has addressed three important issues with regard to section 21.1: (i) the role of the court in assessing an application to validate a will; (ii) the interaction between section 21.1, and section 31 of the Electronic Commerce Act, 2000 (ECA); and (iii) the factors that a court should consider when assessing if a document whose validation is sought sets out the deceased’s testamentary intentions.

Role of the Court

The application to validate a draft will of the late Mr. Mavalwala was unopposed by all parties with a financial interest in his estate. Nevertheless, the Court held that the nature of the authority granted by section 21.1 obligates the Application Judge to ensure that the requirements of the section are satisfied on the evidence, adding that the applicant has the burden of establishing on the balance of probabilities that the requirements of the section have been met. Despite the lack of opposition, the Court declined to validate the draft will.

Electronic Documents

For a will to be valid, it has to be in writing (SLRA, s. 3). Although the ECA states at section 6 that “a legal requirement that a person provide information or a document in writing to another person is satisfied by the provision of the information or document in an electronic form” if certain conditions are met, subsection 31 (1) states that the ECA does not apply to wills and codicils. And subs. 21.1(2) of the SLRA says that subsection (1) is subject to section 31 of the ECA.

According to the evidence that was before the court in the Madhani case, the document that the applicant sought to be validated was a draft will that existed only as an electronic document stored in Word format in the computer of the drafting lawyer. It was provided to the deceased’s niece (who conveyed his instructions) in electronic form. The Court found no evidence that the draft will had been used in physical form at any material time. The Court therefore concluded that the draft will was an electronic document that could not be validated under section 21.1.

Fixed and Final Testamentary Intention

Although its ruling on the application of subs. 21.1(2) was dispositive of the application, the Court went on to consider whether the draft will expressed the deceased’s “deliberate or fixed and final expression of intention as to the disposal of his property on death.”

The Court’s conclusion was: it did not. The main reason was that although the drafting lawyer emailed the draft will to the deceased’s niece, there was no evidence that the deceased reviewed it or approved of its contents:

“…As a result, there is no evidence that [the deceased] instructed or even considered that the 2023 Draft Will expressed his deliberate or fixed and final intentions. This is critical because the time for assessment of whether the document or writing contains the testamentary intention of the testator is at the time that the document or writing is made…”

The Court also noted that the drafting lawyer had been planning to meet with the deceased alone to go over the draft will. That meeting would have allowed the testator and the lawyer, prior to execution, to determine whether the draft “set out accurately the deliberate or fixed and final intentions of the testator and, if not, to make final revisions”. Sadly, that did not happen because the deceased died on the same day as the scheduled meeting, and “there was no earlier meeting that stands as a proxy for this final meeting”. The Court concluded:

“…Expressions of intentions, alone, are insufficient to ground a valid will. I have no doubt that [the deceased] intended to change his 2021 Will… However, the Applicant did not establish, on a balance of probabilities, that the 2023 Draft Will contains a deliberate or fixed and final expression by [the deceased], at the time that the document was made, of the disposal of his property on death. On this finding, the relief sought in this Application cannot be granted”.

Comments

The Madhani decision contains a helpful and thorough articulation of the principles that should guide a Court in determining whether to validate a will under section 21.1, as gleaned from case law both in Ontario and from some of the western provinces, which have had curative provisions like section 21.1 on their statutory books for some time. The decision is worth reading for that reason. Unfortunately for the late Mr. Mavalwala and his family and intended beneficiaries, the section did not avail him. But the facts of the case are highly unusual: had Mr. Mavalwala booked his appointment for one day earlier, he presumably would have signed a new will which could then have been admitted to probate without controversy. It is therefore difficult to draw lessons from the decision other than (perhaps) that it is best to go see a lawyer and get one’s will drawn up at as early a stage as is feasible.