The Ontario Superior Court of Justice recently had to rule on whether or not an electronic copy of a will that did not meet the formal requirements of a valid will, could otherwise be validated in Samide v. Taylor.[1]
Background
The Applicant brought the within application seeking an order that an electronic document dated March 4, 2024, is the valid last will and testament of her late husband, Robert Samide (the “Deceased”). The Respondent, opposed the application and sought to propound the Deceased’s previously executed will, which he had signed in July of 2013 (the “2013 Will”).
The Deceased died unexpectedly in July of 2024 in a kayaking accident. He was survived by three children and the Applicant, his domestic partner, along with her three sons. The Deceased’s daughter, Jessica, is the Respondent in these proceedings. In the 2013 Will, the Deceased left the entirety of his estate equally to his three children. The 2013 Will’s validity was not disputed, as it was a paper document that was duly signed and witnessed.
Following the Deceased’s passing however, two documents was discovered on his computer that appeared to be the Deceased’s testamentary expression. One of these documents was dated March 4, 2924, and one was dated March 5, 2024 (collectively, the “2024 Wills”). The two documents were nearly identical, with the only material difference, that being a list of the Deceased’s assets and the detail of certain bequests.
These documents appeared to have been prepared using forms taken from an online will kit. Will kits contain preprinted forms with blank spaces to be filled in by a testator. The documents bore the title, “This is the Last Will and Testament” with spaces for the insertion of the testator’s name, address, and date. They also contained a revocation provision and clauses for the appointment of executors, the payment of debts and the distribution of assets. Notably, neither of the 2024 Wills were printed, signed, or witnessed.
The 2024 Wills departed significantly from the 2013 Will, as they provided that the residue of the Deceased’s estate was to go to the Applicant, with certain specific bequests being made to the Deceased’s children and the Applicant’s children respectively.
The Respondent took the position that the 2024 Wills are not valid because they clearly lack the necessary formalities, and, as a wholly electronic document, they cannot be saved by section 21.1 of the Succession Law Reform Act (“SLRA”).[2] The Applicant submitted that the 2024 Wills can be validated by section 21.1 of the SLRA and that they should be validated as they represent the final and fixed expression of the Deceased’s testamentary intention.
Analysis
The SLRA sets out the requirements for a valid will as follows:
3. A will is valid only when it is in writing.
4(2). Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.[3]
Additionally, section 21.1 of the SLRA provides as follows:
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.
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000 (“ECA”).[4]
Section 21.1 is a curative provision that is intended to relieve against potentially harsh consequences of failing to comply with the strict formal requirements set out in section 4 of the SLRA.
The ECA creates a set of Function Equivalency Rules for legal recognition of electronic documents. This includes the fact that a legal requirement that a document be in writing can be satisfied by a document in electronic form if it is accessible so as to be usable for subsequent reference.[5] However, Section 31 of the ECA provides that the ECA does not apply to Wills and Codicils.[6]
The Respondent argued that, given the interplay between these provisions, section 21.1 of the SLRA is not available to validate the Deceased’s 2024 Wills.
Rady J noted that the caselaw considering the interplay between s.21.1 and s.31 of the ECA is still emerging, with the two leading Ontario Superior Court of Justice decisions that squarely confront the issue coming to opposite conclusions.
In the first decision, Madhani v. Fast,[7] Justice Sanfilippo held the following:
[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 trusts 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.
[46] Here, the 2023 Draft Will existed only as an electronic document stored in Word document format in [the solicitor’s] computer’s directory and as provided to [the testator] in electronic form. There is no evidence that the 2023 Draft Will was used in physical form at any material time. As an electronic document cannot be a will, and as the 2023 Draft Will is an electronic document, the 2023 Draft Will cannot be declared under s. 21.1 to be the valid and effective last will and testament of the Deceased. This determination is, alone, dispositive of this Application.
In the later decision of Gebramariam v. Menghesha,[8] Justice Corthorn came to the opposite conclusion finding that when read together, the SLRA and the ECA do not create a prohibition against the reliance on an electronic document in support of an application pursuant to s.21.1 of the SLRA. Justice Corthorn arrived at this conclusion based on the following reasoning:
- the SLRAdoes not define “document” or “writing” which are the words used in s. 21.1;
- the ECAsets out a series of Functional Equivalency Rules which speak to the creation and not the validation of electronic documents;
- the Rules facilitate the creation of documents that would otherwise be invalid and unenforceable because they do not meet prescribed legal requirements;
- the ECAdefines “electronic” but not “electronic document”;
- 26(1) of the ECAdoes not limit any provision that expressly authorizes, prohibits or regulates the use of electronic documents;
- there is nothing in s. 21.1 of the SLRAthat expressly prohibits the reliance on an electronic document for an application under that section or the validation of an electronic document as a testamentary document if the requirements of s. 21.1 are met;
- potential consequences for failing to meet legal requirements are not addressed in the ECAin the context of validation.
In the case at hand, Rady J of the Ontario Superior Court of Justice respectfully disagreed with Justice Corthorn’s decision and opted to follow the reasoning of Justice Sanfilippo, finding that as a result of the interplay between s.21.1 of the SLRA and s. 31 of the ECA, a testamentary document that exists only in electronic form cannot be validated pursuant to s.21.1. In coming to this conclusion, the court reasoned that the clear reference to s.31 of the ECA in s.21.1 showed a specific intention for the section to not include the section in reference to electronic documents. Although other provisions of the ECA likened electronic documents to hard copy documents, the specific inclusion of s.31 showed a legislative intent to exclude wills and codicils from this classification.
Moreover, the court founds that, even if s.21.1 did apply to electronic documents, the 2024 Wills did not constitute a valid testamentary disposition. Given that there were two versions of the document, one made on March 4, 2024, and one made on March 5, 2024, suggested that the 2024 Wills were a “work in progress” that could have been susceptible to further refinement or amendment. It is also significant that the Deceased did not sign the 2024 Wills between their creation and his death, which were 5 months apart.
As such, the 2024 Wills could not be validated and the Applicant’s application pursuant to s.21.1 of the SLRA was dismissed.
Final Thoughts
Justice Rady and Justice Sanfilippo’s reasoning regarding the interpretation of the SLRA and ECA, in my opinion, is correct given the apparent legislative intent included in these acts. However, I do find myself wondering if, from a policy perspective this should remain the case. Our world is becoming increasingly digitized, and the ECA recognizes that electronic documents can and should be considered as hard copy documents generally. I question whether the specific exclusion of wills in s.31 of the ECA is justified. Holographic wills were recognized by Canadian legislators as a means to dispense with the strict formal requirements imposed by legislation like the SLRA, as not everyone has access to legal advice to ensure compliance. Today, while, for a litany of reasons, not everyone can obtain legal advice in preparing and executing a will, almost everyone can gain access to a computer and create a digital one. I think it may be time for legislators to consider why we allow for s.21.1 to continue only to operate toward hard copies, where testamentary intent can be proved for electronic copies.
—
[1] Samide v. Taylor, 2026 ONSC 3589
[2] Succession Law Reform Act, R.S.O. 1990, c.S.26 at s. 21.1
[3] Ibid at sections 3 and 4(2)
[4] Electronic Commerce Act, 2000, SO 2000, c 17, at section 31
[5] Ibid at section 5
[6] Ibid at section 31
[7] Madhani v. Fast, 2025 ONSC 4100
[8] Gebramariam v. Menghesha, 2026 ONSC 545.
Written by: Mark Polese
Posted on: July 30, 2026
Categories: Commentary
The Ontario Superior Court of Justice recently had to rule on whether or not an electronic copy of a will that did not meet the formal requirements of a valid will, could otherwise be validated in Samide v. Taylor.[1]
Background
The Applicant brought the within application seeking an order that an electronic document dated March 4, 2024, is the valid last will and testament of her late husband, Robert Samide (the “Deceased”). The Respondent, opposed the application and sought to propound the Deceased’s previously executed will, which he had signed in July of 2013 (the “2013 Will”).
The Deceased died unexpectedly in July of 2024 in a kayaking accident. He was survived by three children and the Applicant, his domestic partner, along with her three sons. The Deceased’s daughter, Jessica, is the Respondent in these proceedings. In the 2013 Will, the Deceased left the entirety of his estate equally to his three children. The 2013 Will’s validity was not disputed, as it was a paper document that was duly signed and witnessed.
Following the Deceased’s passing however, two documents was discovered on his computer that appeared to be the Deceased’s testamentary expression. One of these documents was dated March 4, 2924, and one was dated March 5, 2024 (collectively, the “2024 Wills”). The two documents were nearly identical, with the only material difference, that being a list of the Deceased’s assets and the detail of certain bequests.
These documents appeared to have been prepared using forms taken from an online will kit. Will kits contain preprinted forms with blank spaces to be filled in by a testator. The documents bore the title, “This is the Last Will and Testament” with spaces for the insertion of the testator’s name, address, and date. They also contained a revocation provision and clauses for the appointment of executors, the payment of debts and the distribution of assets. Notably, neither of the 2024 Wills were printed, signed, or witnessed.
The 2024 Wills departed significantly from the 2013 Will, as they provided that the residue of the Deceased’s estate was to go to the Applicant, with certain specific bequests being made to the Deceased’s children and the Applicant’s children respectively.
The Respondent took the position that the 2024 Wills are not valid because they clearly lack the necessary formalities, and, as a wholly electronic document, they cannot be saved by section 21.1 of the Succession Law Reform Act (“SLRA”).[2] The Applicant submitted that the 2024 Wills can be validated by section 21.1 of the SLRA and that they should be validated as they represent the final and fixed expression of the Deceased’s testamentary intention.
Analysis
The SLRA sets out the requirements for a valid will as follows:
3. A will is valid only when it is in writing.
4(2). Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.[3]
Additionally, section 21.1 of the SLRA provides as follows:
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.
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000 (“ECA”).[4]
Section 21.1 is a curative provision that is intended to relieve against potentially harsh consequences of failing to comply with the strict formal requirements set out in section 4 of the SLRA.
The ECA creates a set of Function Equivalency Rules for legal recognition of electronic documents. This includes the fact that a legal requirement that a document be in writing can be satisfied by a document in electronic form if it is accessible so as to be usable for subsequent reference.[5] However, Section 31 of the ECA provides that the ECA does not apply to Wills and Codicils.[6]
The Respondent argued that, given the interplay between these provisions, section 21.1 of the SLRA is not available to validate the Deceased’s 2024 Wills.
Rady J noted that the caselaw considering the interplay between s.21.1 and s.31 of the ECA is still emerging, with the two leading Ontario Superior Court of Justice decisions that squarely confront the issue coming to opposite conclusions.
In the first decision, Madhani v. Fast,[7] Justice Sanfilippo held the following:
[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 trusts 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.
[46] Here, the 2023 Draft Will existed only as an electronic document stored in Word document format in [the solicitor’s] computer’s directory and as provided to [the testator] in electronic form. There is no evidence that the 2023 Draft Will was used in physical form at any material time. As an electronic document cannot be a will, and as the 2023 Draft Will is an electronic document, the 2023 Draft Will cannot be declared under s. 21.1 to be the valid and effective last will and testament of the Deceased. This determination is, alone, dispositive of this Application.
In the later decision of Gebramariam v. Menghesha,[8] Justice Corthorn came to the opposite conclusion finding that when read together, the SLRA and the ECA do not create a prohibition against the reliance on an electronic document in support of an application pursuant to s.21.1 of the SLRA. Justice Corthorn arrived at this conclusion based on the following reasoning:
In the case at hand, Rady J of the Ontario Superior Court of Justice respectfully disagreed with Justice Corthorn’s decision and opted to follow the reasoning of Justice Sanfilippo, finding that as a result of the interplay between s.21.1 of the SLRA and s. 31 of the ECA, a testamentary document that exists only in electronic form cannot be validated pursuant to s.21.1. In coming to this conclusion, the court reasoned that the clear reference to s.31 of the ECA in s.21.1 showed a specific intention for the section to not include the section in reference to electronic documents. Although other provisions of the ECA likened electronic documents to hard copy documents, the specific inclusion of s.31 showed a legislative intent to exclude wills and codicils from this classification.
Moreover, the court founds that, even if s.21.1 did apply to electronic documents, the 2024 Wills did not constitute a valid testamentary disposition. Given that there were two versions of the document, one made on March 4, 2024, and one made on March 5, 2024, suggested that the 2024 Wills were a “work in progress” that could have been susceptible to further refinement or amendment. It is also significant that the Deceased did not sign the 2024 Wills between their creation and his death, which were 5 months apart.
As such, the 2024 Wills could not be validated and the Applicant’s application pursuant to s.21.1 of the SLRA was dismissed.
Final Thoughts
Justice Rady and Justice Sanfilippo’s reasoning regarding the interpretation of the SLRA and ECA, in my opinion, is correct given the apparent legislative intent included in these acts. However, I do find myself wondering if, from a policy perspective this should remain the case. Our world is becoming increasingly digitized, and the ECA recognizes that electronic documents can and should be considered as hard copy documents generally. I question whether the specific exclusion of wills in s.31 of the ECA is justified. Holographic wills were recognized by Canadian legislators as a means to dispense with the strict formal requirements imposed by legislation like the SLRA, as not everyone has access to legal advice to ensure compliance. Today, while, for a litany of reasons, not everyone can obtain legal advice in preparing and executing a will, almost everyone can gain access to a computer and create a digital one. I think it may be time for legislators to consider why we allow for s.21.1 to continue only to operate toward hard copies, where testamentary intent can be proved for electronic copies.
—
[1] Samide v. Taylor, 2026 ONSC 3589
[2] Succession Law Reform Act, R.S.O. 1990, c.S.26 at s. 21.1
[3] Ibid at sections 3 and 4(2)
[4] Electronic Commerce Act, 2000, SO 2000, c 17, at section 31
[5] Ibid at section 5
[6] Ibid at section 31
[7] Madhani v. Fast, 2025 ONSC 4100
[8] Gebramariam v. Menghesha, 2026 ONSC 545.
Author