Can an unsigned, electronic draft will be validated in Ontario?
The Ontario Superior Court’s (the “Court”) recent decision in Madhani v. Fast, 2025 ONSC 4100, serves as a critical wake-up call for exposure in estate planning. The case highlights how indirect client communication, and the common practice of keeping exclusively digital drafts, can leave even the most carefully planned estates without a valid will. This case underscores the stark reality in Ontario that an unsigned digital draft, even one resulting from a client’s clear and detailed instructions, will not be validated under Ontario’s current succession law.
Why does this matter now?
The increasing reliance on digital documents and communication creates a pervasive risk that something as simple as a missed email can unravel an entire estate plan, leaving intentions unfulfilled and inviting costly litigation.
This article provides the essential guidance to bridge the gap between modern drafting practices and the formalities for executing a valid will.
What happened in Madhani v. Fast? The case behind the draft will
The deceased died unexpectedly on November 10, 2023, the same day he was scheduled to attend his lawyer’s office to execute a new will.
The deceased’s 2021 will, which was properly executed, appointed his niece’s spouse as estate trustee and distributed the residue of his estate in equal shares among 14 family members. In 2022, he retained a lawyer to update the document, excluding certain relatives and adding charitable gifts.
Following extensive instructions from the deceased, a draft reflecting all changes (the “2023 Draft Will”) was sent electronically by the drafting lawyer, on October 28, 2023, to the deceased’s niece, who had acted as an intermediary throughout the process with the deceased’s permission.
The drafting lawyer received no response to the 2023 Draft Will before the deceased’s death. A signing meeting had been previously scheduled for November 10, 2023, but the draft was never printed or signed.
The applicant, appointed and acting as estate trustee under the 2021 will, sought a declaration under s. 21.1 of Ontario’s Succession Law Reform Act (the “SLRA”) that the 2023 Draft Will was valid and effective.
What does section 21.1 of the SLRA actually allow?
Section 21.1(1) of the SLRA allows the Court to validate a document that was not properly executed if it is satisfied that the document sets out the testamentary intentions of the deceased. However, this curative power is subject to s. 31 of the Electronic Commerce Act, 2000, Electronic Commerce Act, 2000, (the “ECA”), which excludes electronic wills from recognition.
The court reiterated that the curative power under s. 21.1 of the SLRA cannot override the statutory exclusion of electronic documents under the ECA.
Key findings
1. Electronic document exclusion
The Court found that because the 2023 Draft Will only ever existed in electronic form and was never printed or physically signed, it fell outside the scope of section 21.1 of the SLRA due to the ECA’s exclusion of electronic wills. This finding alone was dispositive of the application.
2. No fixed and final testamentary intention
While there was plenty of evidence that the deceased had the intention of changing his 2021 will, there was no direct evidence that he had reviewed or approved the final version of the 2023 Draft Will. The lack of communication from the deceased after the draft was sent, combined with the absence of a signature, prevented the Court from determining that the document reflected the deceased’s final wishes.
In other words, the SLRA may save a paper will missing certain formalities such as a witness signature, but it will not rescue an entirely digital file.
Takeaways for estate planning
Madhani v. Fast emphasizes several best practices for estate planning:
- Avoid reliance on electronic drafts
Electronic drafts, even if carefully prepared, cannot be validated under section 21.1 of the SLRA. Lawyers should consider printing a final draft immediately once a client confirms their intention to sign a will.
- Document final intentions
Where a client expresses a desire to change their will, lawyers should ensure that the client reviews and approves the final draft directly. Reliance on intermediaries, even trusted family members acting with permission, may not satisfy evidentiary requirements.
- Execution meetings
The Court emphasized the importance of lawyers meeting alone with the client for final review and execution. This step is critical to confirming testamentary capacity and intent.
- Maintain thorough records
Detailed notes of client meetings, instructions, and communications can be invaluable in establishing authenticity and intent if the will is later challenged.
- Timing risks
Clients should be made aware that delays in executing a will can result in their wishes not being carried out. Where possible, execution should occur without delay after finalizing the draft.
Conclusion: the future of validating electronic wills in Canada
While section 21.1 of the SLRA offers flexibility in validating imperfect wills, Madhani v. Fast demonstrates the limits of that flexibility, particularly where the document is electronic and unsigned.
In our increasingly digital age, courts across Canada are seeing more decisions involving electronic documents. For example, in Haines v. Kuffner Estate, 2024 SKKB 51, the Saskatchewan Court of King’s Bench deemed a digital iPad message entitled “my holographic will” to be the testator’s Last Will and Testament, under section 37 of The Wills Act, 1996. Madhani v. Fast demonstrates that Ontario courts continue to apply strict statutory interpretation with respect to electronic documents, particularly in light of additional imperfect elements.
We can expect to continue to see litigation surrounding electronic and draft wills. Estate planning lawyers play an important role in ensuring wills are properly executed and that the testator’s intentions are clearly documented and confirmed. If you have questions about your estate planning or estate litigation, please contact a member of Miller Thomson’s Private Client Services group.
Frequently asked questions about draft and electronic wills in Ontario
Not under current law. Section 21.1 of the Succession Law Reform Act allows courts to validate a document that does not meet formal requirements, but only if it exists in physical form and clearly reflects the testator’s final intentions. At this time, a purely digital draft will not be validated in Ontario.
Direct written communications with the client may help demonstrate a fixed and final intention. However, the further a document strays from the formal execution requirements, including existing in exclusively electronic form, the less likely Ontario courts are to validate the document as a will.
Yes. Some courts in Canada have validated electronic documents as wills, applying the relevant legislation in their jurisdiction, but each case will vary depending on the surrounding circumstances. Courts in Ontario have demonstrated, as in Madhani v. Fast, they will not yet apply the existing legislation in this way.
– Print and arrange execution as soon as a draft is finalized;
– obtain the client’s direct instructions and confirmation, ideally in person; and
– keep clear records of instructions and approvals.
