In Madhani v. Fast, 2025 ONSC 4100, Justice Sanfilippo delivered a clear ruling: an unsigned Word document prepared by a will drafting lawyer falls under the electronic document exception and cannot be validated under Section 21.1 of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”).
This decision involved a testator who passed away on the very morning they were scheduled to attend their lawyer’s office to sign a new will.[1] The estate trustee (under a previous will) brought an application to validate the unsigned draft will. A key piece of evidence relied upon was an email sent to the drafting lawyer by a non-beneficiary, who confirmed that the testator “went over the will” and everything “look[ed] good”.[2]
Despite finding that the draft will fell under the electronic document exception, Justice Sanfilippo nonetheless applied the prevailing test for testamentary intentions from the Manitoba Court of Appeal in George v. Daily, 1997 CanLII 17825 (MB CA). His Honour concluded that the applicant failed to prove, on a balance of probabilities, that the draft Word document represented the testator’s deliberate or fixed and final expression at the time it was created.[3] As such, court-ordered validation was unavailable on two grounds: the statutory exception and a failure to meet the substantive test.
Notwithstanding that the relief sought was unopposed, Justice Sanfilippo held that the nature of the authority granted by the SLRA obligates an Application Judge to ensure that the requirements for Section 21.1 are satisfied by the evidence.[4] Although the application was not successful, Justice Sanfilippo noted that the evidence in support was credible, corroborated, and tendered without self-interest.[5] Costs were ordered in favour of the estate trustee on a full indemnity basis from the estate’s capital, as Justice Sanfilippo noted that “the identification of the valid and effective will for probate is a proper task for the executor and trustee and material to the administration of the estate”.[6]
Statutory Exception
Justice Sanfilippo held that by operation of section 21.1(2) of the SLRA and Section 31(1)(1) of the ECA, a proposed document for court-ordered validation “cannot be an electronic document but rather must be in physical form”.[7]
In arriving at this conclusion, Justice Sanfilippo cited Allison v. McBride, 2025 ONSC 2828 and White v. White, 2023 ONSC 7286. In both cases, Justice Myers previously raised the issue of the statutory exception for electronic documents in obiter dictum (specifically, in two footnotes).[8]
Section 21.1(2) of the SLRA states:
No electronic wills
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000. 2021, c. 4, Sched. 9, s. 5.
Section 31 of the Electronic Commerce Act, 2000 (“ECA”) states:
Documents to which Act does not apply
31 (1) This Act does not apply to the following documents:
-
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.[…]
Additionally, Justice Sanfilippo noted that “the provisions of the ECA that validate electronic documents as equivalent to a document in writing, such as ss. 4 and 5, do not apply to wills, codicils and trusts created by wills and codicils”.[9]
Substantive Analysis
Beyond the electronic document exception, Justice Sanfilippo, for completeness, still undertook a substantive analysis of the draft will and observed that the emerging principles for court-ordered validity can be summarized as follows:
(a) “A determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.”
(b) Two issues must be established. First, the document or writing must be shown to be authentic. “The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.”
(c) The non-compliant document must record a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”
(d) The deliberate or fixed and final intention need not be irrevocable, as valid and effective wills are revocable until the death of the testator. “Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.”
(e) The factors that might inform whether the document embodies the deceased’s testamentary intentions include “the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document”.
(f) The greater that the document departs from the formal statutory requirements, the harder that it may be for the court to be satisfied that it embodies the deceased’s testamentary intention.[10]
Justice Sanfilippo noted that “there is a reason for heightened caution when considering an unsigned document or writing said to express testamentary intentions” – testators do change their minds.[11]
Ultimately, Justice Sanfilippo found no reliable evidence that the testator had either instructed the drafting lawyer or considered the draft will to be a deliberate or fixed and final expression of their intentions.[12] His Honour concluded:
Expressions of intentions as to how a testator would like their property to be disposed of after death are not testamentary intentions. Expressions of intentions, alone, are insufficient to ground a valid will.[13]
—
[1] Madhani v. Fast, 2025 ONSC 4100 at para 3.
[2] Madhani v. Fast, 2025 ONSC 4100 at para 20.
[3] Madhani v. Fast, 2025 ONSC 4100 at para 59.
[4] Madhani v. Fast, 2025 ONSC 4100 at para 40; citing Hejno v. Hejno, 2025 ONCA 249, at paras. 2 and 9.
[5] Madhani v. Fast, 2025 ONSC 4100 at para 8.
[6] Madhani v. Fast, 2025 ONSC 4100 at para 61.
[7] Madhani v. Fast, 2025 ONSC 4100 at para 45.
[8] Allison v. McBride, 2025 ONSC 2828, at para 11 and footnote 2 and White v. White, 2023 ONSC 7286, at para 32 and footnote 6.
[9] Madhani v. Fast, 2025 ONSC 4100 a para 44.
[10] Madhani v. Fast, 2025 ONSC 4100 at para 33.
[11] Madhani v. Fast, 2025 ONSC 4100 at para 55.
[12] Madhani v. Fast, 2025 ONSC 4100 at para 57.
[13] Madhani v. Fast, 2025 ONSC 4100 at para 59.
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Written by: Nima Hojjati
Posted on: July 25, 2025
Categories: Commentary, WEL Newsletter
In Madhani v. Fast, 2025 ONSC 4100, Justice Sanfilippo delivered a clear ruling: an unsigned Word document prepared by a will drafting lawyer falls under the electronic document exception and cannot be validated under Section 21.1 of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”).
This decision involved a testator who passed away on the very morning they were scheduled to attend their lawyer’s office to sign a new will.[1] The estate trustee (under a previous will) brought an application to validate the unsigned draft will. A key piece of evidence relied upon was an email sent to the drafting lawyer by a non-beneficiary, who confirmed that the testator “went over the will” and everything “look[ed] good”.[2]
Despite finding that the draft will fell under the electronic document exception, Justice Sanfilippo nonetheless applied the prevailing test for testamentary intentions from the Manitoba Court of Appeal in George v. Daily, 1997 CanLII 17825 (MB CA). His Honour concluded that the applicant failed to prove, on a balance of probabilities, that the draft Word document represented the testator’s deliberate or fixed and final expression at the time it was created.[3] As such, court-ordered validation was unavailable on two grounds: the statutory exception and a failure to meet the substantive test.
Notwithstanding that the relief sought was unopposed, Justice Sanfilippo held that the nature of the authority granted by the SLRA obligates an Application Judge to ensure that the requirements for Section 21.1 are satisfied by the evidence.[4] Although the application was not successful, Justice Sanfilippo noted that the evidence in support was credible, corroborated, and tendered without self-interest.[5] Costs were ordered in favour of the estate trustee on a full indemnity basis from the estate’s capital, as Justice Sanfilippo noted that “the identification of the valid and effective will for probate is a proper task for the executor and trustee and material to the administration of the estate”.[6]
Statutory Exception
Justice Sanfilippo held that by operation of section 21.1(2) of the SLRA and Section 31(1)(1) of the ECA, a proposed document for court-ordered validation “cannot be an electronic document but rather must be in physical form”.[7]
In arriving at this conclusion, Justice Sanfilippo cited Allison v. McBride, 2025 ONSC 2828 and White v. White, 2023 ONSC 7286. In both cases, Justice Myers previously raised the issue of the statutory exception for electronic documents in obiter dictum (specifically, in two footnotes).[8]
Section 21.1(2) of the SLRA states:
No electronic wills
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000. 2021, c. 4, Sched. 9, s. 5.
Section 31 of the Electronic Commerce Act, 2000 (“ECA”) states:
Documents to which Act does not apply
31 (1) This Act does not apply to the following documents:
Additionally, Justice Sanfilippo noted that “the provisions of the ECA that validate electronic documents as equivalent to a document in writing, such as ss. 4 and 5, do not apply to wills, codicils and trusts created by wills and codicils”.[9]
Substantive Analysis
Beyond the electronic document exception, Justice Sanfilippo, for completeness, still undertook a substantive analysis of the draft will and observed that the emerging principles for court-ordered validity can be summarized as follows:
(a) “A determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.”
(b) Two issues must be established. First, the document or writing must be shown to be authentic. “The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.”
(c) The non-compliant document must record a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”
(d) The deliberate or fixed and final intention need not be irrevocable, as valid and effective wills are revocable until the death of the testator. “Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.”
(e) The factors that might inform whether the document embodies the deceased’s testamentary intentions include “the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document”.
(f) The greater that the document departs from the formal statutory requirements, the harder that it may be for the court to be satisfied that it embodies the deceased’s testamentary intention.[10]
Justice Sanfilippo noted that “there is a reason for heightened caution when considering an unsigned document or writing said to express testamentary intentions” – testators do change their minds.[11]
Ultimately, Justice Sanfilippo found no reliable evidence that the testator had either instructed the drafting lawyer or considered the draft will to be a deliberate or fixed and final expression of their intentions.[12] His Honour concluded:
Expressions of intentions as to how a testator would like their property to be disposed of after death are not testamentary intentions. Expressions of intentions, alone, are insufficient to ground a valid will.[13]
—
[1] Madhani v. Fast, 2025 ONSC 4100 at para 3.
[2] Madhani v. Fast, 2025 ONSC 4100 at para 20.
[3] Madhani v. Fast, 2025 ONSC 4100 at para 59.
[4] Madhani v. Fast, 2025 ONSC 4100 at para 40; citing Hejno v. Hejno, 2025 ONCA 249, at paras. 2 and 9.
[5] Madhani v. Fast, 2025 ONSC 4100 at para 8.
[6] Madhani v. Fast, 2025 ONSC 4100 at para 61.
[7] Madhani v. Fast, 2025 ONSC 4100 at para 45.
[8] Allison v. McBride, 2025 ONSC 2828, at para 11 and footnote 2 and White v. White, 2023 ONSC 7286, at para 32 and footnote 6.
[9] Madhani v. Fast, 2025 ONSC 4100 a para 44.
[10] Madhani v. Fast, 2025 ONSC 4100 at para 33.
[11] Madhani v. Fast, 2025 ONSC 4100 at para 55.
[12] Madhani v. Fast, 2025 ONSC 4100 at para 57.
[13] Madhani v. Fast, 2025 ONSC 4100 at para 59.
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