In January 2022, a will validation provision was added to the Succession Law Reform Act (SLRA), RSO 199, c. S26. Section 21.1 allows the court to validate a document that clearly sets out a testator’s intentions, even if it was not properly executed in compliance with Ontario’s formal requirements. Since then, this provision has allowed for the validation of imperfect wills in a range of circumstances that would have otherwise been considered invalid: wills lacking witness signatures, wills verbally confirmed by the testator but unsigned, and even validating a notebook consisting of photocopied excerpts of a previous will with handwritten annotations.
In Madhani v Fast, 2025 ONSC 4100 the Ontario Superior Court of Justice considered a different question: can an unsigned electronic draft be validated under s. 21.1?
The deceased in Madhani v Fast had executed a valid will in 2021, dividing his estate among his sons, siblings, nieces and nephews. Two years later, the deceased sought to change his will, excluding certain members of his family. He began the estate planning process with his lawyer but, on the morning of the scheduled meeting to sign his will, he passed away without signing his final draft.
His estate trustee applied to the court under s. 21.1 to validate the unsigned 2023 draft.
The Court held that the draft could not stand as a valid will. The primary reason driving this result is that s. 21.1 only cures physical documents. Under Ontario’s Electronic Commerce Act, 2000, S.O. 2000, c. 17, wills cannot be created or validated electronically. Accordingly, as the deceased draft existed only electronically, it was not eligible for validation.
Despite this, the Court considered whether the draft would have been eligible for s. 21.1 had it been a physical document. Here, the Court emphasized that testamentary intentions must reflect a “deliberate or fixed and final expression” of a testator’s wishes – not just preliminary instructions. The deceased in this case had not conferred and confirmed directly with his lawyer that the final draft of the will was approved. The lawyer had been communicating through the deceased’s niece over email, who reported that they “went over the will”, and that, aside from a few details, “[e]verything else looks good”. Because the lawyer did not have a chance to conduct her standard final review at the signing with the testator, there was no direct evidence that the deceased himself had reviewed and approved the final draft. As a result, the court held that the 2021 will remained the operative testamentary document.
Implications for Estates Lawyers
This case highlights several important points of consideration for wills and estates practitioners.
Electronic draft wills cannot be validated
Despite the growing use of digital platforms in estate planning, a will in Ontario must still be executed in physical form. No matter how clear the testamentary intentions may be, courts cannot validate electronic drafts.
Risk management
Lawyers should document client instructions carefully, monitor execution timelines, and consider urgency when clients are elderly or unwell. Ontario’s curative provision is not a safety net for unexecuted drafts. The court will only validate documents that clearly embody the testator’s final and deliberate intentions.
In certain urgent circumstances, lawyers may wish to recommend that a client print and sign a draft will, then return a scanned copy with explicit approval. While not ideal as a rule in practice, the approach could help demonstrate final intention in time-sensitive situations – such as a risky surgery – where death may intervene before the formal execution of a will.
The final review meeting matters
The practice of meeting privately with the client to review and execute a will serves an essential function. It ensures the document truly reflects the client’s fixed and final intentions and provides an opportunity for the testator to clarify any uncertainties and ask questions that might arise during review. Without this step, even detailed drafts may be found to be preliminary instructions, falling short of the standard required under s. 21.1.
Ultimately, Madhani v Fast reminds us that while s. 21.1 has expanded flexibility, it does not eliminate the safeguards built into the other formalities required by the SLRA. Drafts will not suffice without clear evidence of a testator’s deliberate and final intentions and approval.
Estate planning lawyers should approach each client’s circumstances with foresight, building in safeguards where needed to ensure there is no doubt about a client’s testamentary intentions. Contact our estate lawyers today to schedule a consultation and ensure your estate planning documents meet legal standards and reflect your true intentions.
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