The addition of section 21.1 of the Succession Law Reform Act (SLRA), R.S.O. 1990, c. S.26, has allowed courts to validate imperfect wills that clearly reflect the intentions of the testator despite not complying with formal requirements.
In the four years since this provision was implemented, the court has provided practitioners with guidance on what qualifies as an imperfect will worthy of validation. In December, 2025, the Court of Appeal weighed in for the first time and had to assess whether the validation of an unsigned document could be validated as a will under s.21.1.
Although clarifying that their reasons will not “definitively determine the legal test that governs applications under s.21.1 of the SLRA,” the court emphasized the need for sufficient evidence when validating imperfect wills to ensure they embody the true intentions of the testators, even in unopposed applications, and when deference will be given to orders validating a will.
In Hejno v. Hejno 2025 ONCA 249, John Jeffery Hejno had 3 versions of his will created.
- The 2018 will was properly executed and established a spousal trust for his common-law spouse, Jennifer, a second family trust was created primarily for his only grandson, and it listed his two sons as the residual beneficiaries of his estate.
- In 2022, John executed new primary and secondary wills which established a spousal trust for Jennifer and addressed his corporate holdings. However, no trust was created for his grandson nor were any assets set aside for him. The 2022 wills were not executed properly as they only had one witness, and no original was produced at John’s death.
- The 2024 drafts were based on the 2022 drafts but contained “slip sheets” that were not signed or initialed and overstated John’s percentages of shares. These wills were also not properly executed.
In an unopposed application, the 2024 drafts were validated, but no reasons were provided by the application judge for this order.
No Opposition Does Not Mean Less Scrutiny
The Court of Appeal did not give deference to the lower court since no reasons were provided and set aside the order validating the 2024 draft wills.
The 2024 wills were deemed invalid because not only did they fail to comply with Ontario’s formal requirements for due execution of a will, but they also failed to meet the standard for imperfect wills worthy of validation under s.21.1.
John’s lawyer who drafted the 2024 wills confirmed that he never received final instructions to execute these wills and that John remained indecisive about the terms in their final meetings. The slip sheets were also considered unreliable by the court as they were unsigned, uninitialed, and contained incorrect information.
Hence, a key takeaway is that unopposed applications must still establish on a balance of probabilities that the document(s) at issue satisfy the requirements for section 21.1 and express(es) the true intentions of the testator. This must be shown with reliable and credible evidence.
Honouring the Testator’s Final and True Intentions
Finding that the document at issue reflects the deceased’s true testamentary intentions is essential when determining whether to validate incomplete or improperly validated wills.
For this reason, the court also remitted the matter of determining the validity of the 2022 wills to the Superior Court so the application judge can properly address conflicting evidence that may affect credibility and require testimony.
Practitioners considering an application under s.21.1 should note that evidence of uncertainty in intent, active drafting discussions, or outstanding issues requiring instruction, will undermine their validation application, particularly for unsigned documents.
Prior, Properly Executed Wills Provide Insight
To assess the true intentions of the testator when reviewing incomplete drafts, the court can turn to older versions of a will to assist in explaining any differences made in the following drafts.
Overall, Hejno v. Hejno stresses that imperfect wills require strong evidentiary support to confirm the testator’s true intent, even in uncontested cases, and specifies when validation orders merit judicial deference.
Estate planning lawyers should carefully review their client’s documents to ensure they follow the necessary requirements to become a valid will and maintain notes that reflect the client’s testamentary intentions and the decisiveness of their instructions.
Don’t leave your estate to chance—unopposed applications for validating imperfect wills require careful scrutiny. For expert guidance, Contact our estate lawyers today.
At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, real estate law, estate law, employment law, health law, and tax law. For over 140 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.
2 St Clair Ave West
