Validating Wills Under the SLRA

For a testamentary document to be valid, Ontario law used to insist on a regimen of full compliance with the formalities of execution.¹ The document had to be signed or acknowledged in the presence of two or more witnesses and the witnesses had to subscribe the will in the presence of the testator.² This landscape shifted on January 1, 2022 when Ontario introduced the substantial compliance regime. Borrowing from Manitoba’s decision in George v. Daily,³ a statutory amendment to the SLRA gave the Superior Court of Justice a curative power to validate non-compliant testamentary instruments. Under section 21.1 of the SLRA, an otherwise non-compliant will can be validated “if the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased […].”⁴

But, how far does section 21.1 go? Is it meant to only forgive minor technical oversights like a witness forgetting to sign? What happens if the testator forgot to sign? How about an electronic version of a will? Let’s take a look.

The Two-Pronged Validation Test

Section 21.1 does not grant courts unrestrained, absolute and unfettered discretion to declare any document a valid will. As established in Cruz v. Public Guardian and Trustee⁵ and Marsden v. Hunt,⁶ in order to employ section 21.1, the propounder of the document bears the burden of establishing two distinct criteria on a balance of probabilities:

1. Authenticity: Clear evidence that the document is a genuine creation of the deceased.⁷
2. Fixed and Final Testamentary Intention: Proof that the document records a deliberate, final expression disposing of property on death, which must be distinguished from preliminary negotiations or ongoing draft discussions.⁸

The Court of Appeal in Hejno v. Hejno⁹ emphasized that section 21.1 imposes serious obligations on application judges.¹⁰ Here, “[c]ourts must ensure that documents validated under s[ection] 21.1 of the SLRA truly express the testator’s wishes.”¹¹

The Factors Courts Consider

In determining whether a document reflects a settled testamentary intention, Ontario courts engage in a fact-specific inquiry.¹² Rather than adhering to a list of criteria, jurisprudence reveals several key considerations that frequently guide the court’s assessment:

1. Documentary Language and Title: Courts examine whether the document is explicitly titled “will” or “codicil”, though the existence of such language is not determinative. In Allan v. Thunder Bay Regional,¹³ the court highlighted the importance of a clear title and dispositive text.¹⁴ Conversely, as confirmed in Madhani v. Fast,¹⁵ precatory or vague personal statements indicated that “expressions of intentions, alone, are insufficient to ground a valid will.”¹⁶
2. Execution Markers: The presence of a signature, handwritten notes, or partial attestation serves as strong objective evidence of finality. In Madhani, the court warned:

“The farther the proffered document is removed from the formality requirements set out in the SLRA … the more difficult the task for the Applicant to meet the onus of establishing that a declaration should be rendered under s.21.1.”¹⁷

3. Document Storage and Location: Storing a document securely in a safety deposit box or at a lawyer’s office signals a finalized testamentary act. Casual storage – such as leaving a file on a computer desktop or scribbling on loose scrap paper – suggests a temporary draft. For instance, in Madhani v. Fast, the court refused to validate a 2023 draft will that existed solely as an unprinted digital Word file on a lawyer’s computer.¹⁸
4. Temporal Proximity and Protracted Delay:  In Kertesz v. Kertesz,¹⁹ the court validated an unsigned note written by a terminal patient immediately before death, finding that the imminent expectation of death confirmed its finality.²⁰ Conversely, in Smith v. Bechtel leaving a draft unexecuted for years despite repeated lawyer follow-ups led the court to infer an active choice to remain uncommitted.²¹

How Courts Treat Execution Defects

Although section 21.1 applies broadly to any non-compliant document, Ontario courts encounter different evidentiary challenges depending on the nature of the execution defect:

1. Technical Execution Oversights

Where a document was signed by the testator but failed due to a formal mistake, courts have routinely found that testamentary intention is established.

For example, in Vojska v. Ostrowski,²² a lawyer accidentally missed signing as a witness on parallel estate documents. The court noted, “[i]t is hard to imagine a more textbook example of a case for which the new power was intended” and validated the document under section 21.1.”²³

Similarly, in Marsden v. Hunt,²⁴ the court validated a will missing one mandatory witness signature after receiving an unchallenged affidavit from the missing witness confirming she observed execution.²⁵

In Re O’Neill Estate,²⁶ the court used section 21.1 with section 12(3) to preserve a bequest to a brother who witnessed execution but omitted his signature to avoid the statutory witness-beneficiary ban.²⁷

2. Unsigned Lawyer-Prepared Drafts

Unsigned drafts may represent the most contentious area of section 21.1 jurisprudence. Unlike defectively witnessed wills, an unsigned document completely lacks the primary objective act by which a testator signifies finality. As a result, courts approach unsigned lawyer-prepared testamentary drafts with heightened scrutiny to prevent section 21.1 from being a mechanism that enforces incomplete estate planning.

To overcome this evidentiary threshold, an applicant must demonstrate that the draft is not merely a record of preliminary instructions, but a complete reflection of a “fixed and final” testamentary intent.²⁸

Jurisprudence reveals that three factors dictate how courts treat unsigned drafts:

A. Active Review and Affirmative Approval

An unsigned draft can only survive section 21.1 if there is direct, compelling evidence that the deceased personally reviewed the document and approved its specific terms. In Grattan v. Grattan ,²⁹ the court validated an unsigned draft because the deceased had reviewed the text, emailed precise minor edits to her lawyer, and passed away 15 days later.³⁰ In this case, the deceased’s active review and brief timeline proved her fixed testamentary intention to the court. Conversely, if a draft is prepared but never sent to, reviewed by, or confirmed with the client – as was the case in Madhani v. Fast – there is no evidence of final adoption, and the application will likely fail.³¹

B. Mere Instructions versus Final Intent

A common trend in unsigned draft jurisprudence is confusing a client’s draft instructions with a final testamentary act. As highlighted in Smith v. Bechtel, ³² sending initial instructions to a lawyer or receiving a draft with an invitation to “review and advise of changes” inherently signals an ongoing, deliberative process. Unless the deceased takes a clear step to signal that deliberation has concluded, the document remains a preliminary draft.³³

C. Inaction, Delay and Incompleteness

Any delay between receiving a draft and passing away weighs against validation. In McKinlay v. Currie,³⁴ the court emphasized that the curative power of section 21.1 cannot rescue a party’s failure to complete their estate planning. If a client leaves a draft unexecuted for an extended period despite lawyer follow-ups, courts infer either indecision, a change of heart, or an active choice to remain uncommitted. Further, as noted by the Court of Appeal for Ontario in Hejno v. Hejno, where evidence reveals that a testator remained undecided on key aspects of their estate plan, section 21.1 cannot be used to bridge the gap.³⁵

How extensive is the Court’s Discretion under Section 21.1?

Under section 21.1, if the Superior Court of Justice is satisfied that a document sets out the testamentary intentions of the deceased, notwithstanding its lack of proper execution, the Court may order the document valid and fully effective.³⁶ This language gives rise to two observations:

First, the statute explicitly states that the court “may” order the document valid – it does not say “shall”. This distinction may suggest that even when a testator intended for a document to be testamentary, the court retains the discretion to decline validating it. Query what factors would persuade the court to refrain from exercising its discretion?

Second, if such discretion exists, what criteria triggers a court’s decision to exercise its  validation, and how wide is that discretion?

Let’s take a look at the case law.

1. Physical Documents and Electronic Files

A central debate in Ontario estate litigation is whether section 21.1 applies to electronic files. The source of this tension occurs in the interplay between the SLRA and the Electronic Commerce Act (“ECA”).

As of writing this blog, there are currently two competing streams of thought on this issue:

First, under the more restrictive interpretation found in Madhani v. Fast³⁷ and Samide v. Taylor,³⁸ the court’s curative power is restricted by section 31 of the ECA, which excludes wills from electronic document rules. The courts observed:

“The curative power provided by s. 21.1 applies to “a document or writing that was not properly executed or made”. By operation of s. 21.1(2) of the SLRA and s. 31 of the ECA, the “document or writing” cannot be an electronic document but rather must be in physical form: Allison v. McBride, 2025 ONSC 2828, at footnote 2; White v. White, 2023 ONSC 7286, at para. 32.”³⁹

“Caselaw considering the interplay between s. 21.1 and s. 31 of the ECA is emerging and as of this writing, there are two decisions of the Ontario Superior Court of Justice that squarely confront the issue. They come to opposite conclusions. The first is the decision of Sanfilippo J. in Madhani v. Fast, 2025 ONSC 4100. He determined that s. 21.1 of the SLRA cannot save a testamentary document that exists only in electronic form (at paras. 44-46)”⁴⁰

Second, contrasting Justice Sanfillippo’s determination, the court took the opposite view in Gebramariam v. Menghesha,⁴¹ concluding that section 21.1 of the SLRA and the ECA do not create a prohibition against validating an electronic document as a fully effective testamentary disposition. The court noted:

“I conclude that the SLRA and the ECA, when read together, do not create a prohibition, express or implied, against (a) the reliance on an electronic document in support of an application pursuant to s. 21.1 of the SLRA, or (b) the validation of an electronic document as fully effective testamentary document, if the requirements of s. 21.1 are met. Those requirements are discussed below in the final section of my analysis”.⁴²

Thus, until the Court of Appeal for Ontario offers a definitive ruling, the Superior Court of Justice remains divided.

2. Defects of Form versus Defects of Substance

Mio v. Bergvall⁴³ stands for the principle that section 21.1 cannot be deployed to rescue substantive defects or override settled common law rules. In that case, the applicant sought to validate a will containing a “pour over” trust provision directing assets into an amendable inter vivos trust. Since pour-over trust clauses are substantively invalid in Ontario, Fitzpatrick J. dismissed the application.⁴⁴

3. No “reading in” Intent

It has been suggested that section 21.1 cannot be used as a creative tool to insert unexpressed wishes into a document. The Estate of Harold Franklin Campbell (Re)⁴⁵ stands for the principle that where an instrument does not explicitly state an intention to revoke or revive an old will, the court cannot use section 21.1 to “read in” or guess what the deceased might have wanted.⁴⁶

Conclusion

The law on substantial compliance in Ontario seems less than certain. There are some cases like Madhani v. Fast that suggest a more restricted exercise of the Court’s discretion under  21.1 of the SLRA and reject the validation of electronic wills because of section 21.1(2) of the SLRA.  On the other hand, the case of Gebremariam v. Mengesha suggests there may be a wider, more expansive ability of the court to exercise its discretion including the validation of electronic wills, as long as the evidence presents a fixed and final intention. Ultimately, though, we must wait for further appellate guidance to establish certainty whether unsigned or electronic drafts cross the threshold for the proper exercise of the court’s exercise of its discretion to validate the testamentary document in question.