How far does the curative reach of section 21.1 of Ontario’s Succession Law Reform Act truly extend? In confronting whether a purely electronic document can be validated as a testamentary instrument, despite the apparent exclusion of wills under the Electronic Commerce Act, 2000, this decision redefines the statutory boundary between formal execution requirements and the functional proof of testamentary intent in the digital age.

Background

On January 27, 2026, Nabute Ghebrehiwet (“Nabute”) died at the age of 61, being survived by his mother and nine siblings.[1]

Hanna, one of Nabute’s siblings, is the Applicant, whereas the Letekidan, Nabute’s mother, is the Respondent.[2]

At issue in this motion, is an email sent by Nabute in or around March 2020 with the subject line “Please be my witnesses”.[3] Attached to the email is a single-page document titled “Nabute’s Will”.[4] The Court makes the following observations in regard to Nabute’s Will:

Nabute sets out that he is “[o]f sound mind”; that he leaves everything he owns to Hanna; the charities to be supported by Hanna from the inheritance; and the name of his banking institution.  The Attachment concludes with the following line, typed entirely in the same font as the balance of the Attachment: “Signed: Nabute Ghebrehiwet”.  Nothing in the Attachment is handwritten.[5]

Nabute’s Will as found attached to the March 2020 email, does not satisfy the requirements for due execution as found within the Succession Law Reform Act;[6] particularly, those stipulated in sections 4(2)(a)-(c) regarding the execution of a will.

While the Parties agree that Nabute’s Will is non-compliant with the formalities required for due execution,[7] they disagree as to whether Nabute’s Will can be validated pursuant to section 21.1 of the SLRA given the potential limitation of section 21.1(2), and by extension section 31 of the Electronic Commerce Act, 2000.[8]

The relevant legislative provisions read as follows:

Court-ordered validity

21.1  (1)   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 or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

No electronic wills

(2)     Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.

Documents to which Act does not apply

31 (1) This Act does not apply to the following documents:

1. 1. Wills and codicils.
   2. Trusts created by wills or codicils.
   3. Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
   4. Repealed: 2013, c. 2, Sched. 5, s. 2.
   5. Negotiable instruments.
   6. Documents that are prescribed or belong to a prescribed class.  2000, c. 17, s. 31 (1); 2013, c. 2, Sched. 5, s. 2.

The Parties’ Positions

The Applicant’s position is premised upon the distinction between the creation of a will and the validation of a will. While the Applicant acknowledges that a person applying for a validation order is not entitled to rely on the Functional Equivalency Rules under the ECA to bring the subject document or writing within the meaning of a “document or writing” for the purpose of section 21.1 of the SLRA, it is their position that section 21.1 does not, however, prohibit a person from applying to the court for an order that an electronic document is “valid and fully effective as the will of the deceased”.[9]

The Respondent advances that modern principles of statutory interpretation, when applied to the SLRA and the ECA, support a rejection of the idea that an electronic document may be propounded as a testamentary document for the purpose of section 21.1 of the SLRA.[10]

Analysis – Statutory Interpretation

The Court begins by relying on the following passage as articulated by Supreme Court of Canada in Bell ExpressVu v. Rex,

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[11]

In assessing the language at hand, the Court is mindful that the Respondent is relying on a marginal note to section 21.1(2) of the SLRA.[12] In so doing, the Court reiterates that pursuant to the Legislature Act, 2006,[13] marginal notes “are inserted in an Act or regulation for convenience of reference only and do not form part of it.”[14]

Analysis – Section 21.1

The Court begins by considering Madhani v Fast,[15] which is a recent decision examining the interplay between section 21.1 of the SLRA and section 31 of ECA. The Court makes the following finding in regard to Madhani v Fast,

[30]           In Madhani, at para. 46, Sanfilippo J. concludes that “an electronic document cannot be a will.”  The crux of Sanfilippo J.’s analysis of the interplay between the SLRA and the ECA is set out in paras. 44 and 45, both of which are reproduced below:

[44]      The ECA provides for recognition of electronic documents and electronic signatures in Ontario, but s. 21.1(2) of the SLRA states that s. 21.1(1) is subject to s. 31 of the ECA.  Section 31 of the ECA provides that the ECA does not apply to “wills and codicils” and to “trusts created by wills and codicils”. 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 trust created by wills and codicils.

[45]      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.

The Court then deems it appropriate to replace the second sentence of Justice Sanfilippo’s decision at paragraph 45 in Madhani, which states “By operation of section 21.1(2) of the SLRA and section 31 of the ECA, the “document or writing” cannot be an electronic document but rather must be in physical form” with the following:

When the SLRA and ECA are considered together, they provide as follows:

a)      The legal requirements for testamentary documents, stipulated in the SLRA, cannot be satisfied by reliance on the Functional Equivalency Rules under the ECA;

b)      On an application pursuant to s. 21.1(1) of the SLRA, the court is prohibited from relying on the use of the Functional Equivalency Rules, set out in ss. 4-12 of the ECA, as a factor to support an order validating a document or writing as a fully effective testamentary document.  There must be other evidence to support validation of the document or writing as a fully effective testamentary document; and

c)      There is no prohibition against reliance on an electronic document as “a document or writing” for the purpose of s. 21.1(1) of the SLRA.  Nor is the court prohibited from validating an electronic document as a fully effective testamentary document, if the requirements of s. 21.1 are met.[16]

To paraphrase, the Court justifies its revisions to Justice Sanfilippo’s rationale on the following grounds:

• the SLRA does not include a definition of “Document” or “Writing”;
• the Court relies on the Functional Equivalency Rules as articulated in sections 4-12 of the ECA;
• the ECA does not include a definition of “Electronic Document”
• Section 26 of the ECA stipulates that “[n]othing in this Act limits the operation of any provision of law that expressly authorizes, prohibits or regulates the use of electronic information or electronic documents.”
• The types of documents to which the ECAdoes not apply include wills and codicils; and
• Subsection 1(2) of the ECA sets out what is described in the heading to that subsection as the “Extended meaning of ‘legal requirement’”.[17]

In terms of the caselaw referenced by Justice Sanfilippo, the Court distinguishes White v. White,[18] and Allison v. McBride,[19] as not supporting the existence of a prohibition against either the reliance on or the validation of an electronic document.[20]

In respect to White v White, the Court finds that the issue of whether or not an electronic file can be “a document or writing” for the purpose of section 21.1 of the SLRA was not before Myers J. on the motion; accordingly, the Court finds that the view expressed at paragraph 32 are obiter.[21]

In respect to Allison v McBride, the Court once again finds that relevant portions relied upon by Sanfilippo in Madhani, were obiter and that the substantive contents do not support the conclusions reached.[22]

The Court then considers the bulk of the remaining section 21.1 jurisprudence,[23] before relying on a Saskatchewan trial level decision of Haines v. Kuffner Estate,[24] where the court was required to consider the validity, as a testamentary document, of a message, sent on an iPad.[25]

Ultimately, in making their disposition, the Court holds that,

Absent a prohibition against the reliance on an electronic document for the purpose of s. 21.1 of the SLRA, the existence, nature, and extent of the challenges inherent in establishing
(a) the authenticity of an electronic document; or

(b) that the document represents the testator’s deliberate or fixed and final expression of intention are relevant to the burden of proof under s. 21.1.  The existence of such evidentiary challenges does not, however, preclude reliance on an electronic document for the purpose of section 21.1.[26]

Final Remarks

In a notable departure from prior jurisprudence interpreting section 21.1 of SLRA in conjunction with section 31 of the ECA, 2000, the Court has now rejected what was once the prevailing view that a “document or writing” under section 21.1 must exist in physical form.

The Court holds that while the ECA precludes reliance on its Functional Equivalency Rules to cure execution deficiencies, it does not bar the validation of an electronic record where independent evidence establishes authenticity and a fixed, final testamentary intention. As such, the admissibility of an electronic document is not foreclosed as a matter of statutory interpretation; rather, the evidentiary burden under section 21.1 becomes more exacting, with authenticity and deliberateness serving as the central analytical constraints.

In light of this new divergence in the caselaw, it may be safe to say this will not be the last decision to grapple with the scope of section 21.1(2).

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[1] Gebremariam v. Menghesha, 2026 ONSC 545 (CanLII), at para 1 (“Gebremariam”).

[2] Ibid., at para 1.

[3] Ibid., at para 2.

[4] Ibid., at para 3.

[5] Ibid.

[6] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

[7] Gebremariam, at para 4.

[8] Electronic Commerce Act, 2000, SO 2000, c 17 (“ECA”)

[9] Gebremariam, at para 9.

[10] Gebremariam, at para 10.

[11] Bell ExpressVu v. Rex, 2002 SCC 42, at para. 26.

[12] Gebremariam, at paras 10 and 19

[13] Legislature Act, 2006 S.O. 2006, c. 21, Sch. F, s. 70

[14] Gebremariam, at para 19

[15] Madhani v Fast, 2025 ONSC 4100 (“Madhani”).

[16] Madhani, at para 45.

[17] Gebremariam, at paras 31-41.

[18] White v. White, 2023 ONSC 7286.

[19] Allison v. McBride, 2025 ONSC 2828.

[20] Gebremariam, at para 48.

[21] Ibid., at para 53.

[22] Ibid., at para 69.

[23] Ibid., see para 80(a)-(f).

[24] Haines v. Kuffner Estate, 2024 SKKB 51.

[25] Gebremariam, at para 101.

[26] Ibid., at para 114.