The recent decision in Madhani v. Fast[1] addressed electronic wills and the validation of improperly executed wills, two novel and developing areas of the law. The Deceased died on November 10, 2023, leaving a will executed in 2021. However, in late 2022, the Deceased retained a lawyer to update his will. By October 2023, a final draft was ready, but the Deceased died on the morning of the day he was supposed to sign.
The executor of the 2021 Will made an Application to the Court to validate the 2023 Will under section 21.1 of the Succession Law Reform Act[2], which allows a Judge to approve an improperly executed testamentary document if satisfied that it reflects the final intentions of the Deceased. Upon analysis of the evidence, Justice Sanfilippo identified two obstacles to validating the 2023 will.
First, because the will was still in draft form and never printed, it qualifies as an “electronic document,” subject to the Electronic Commerce Act.[3] Although this Act does allow for the recognition of certain electronic documents and signatures, s. 31 explicitly disqualifies testamentary documents. In short, electronic wills are presently not valid in Ontario.
Second, His Honour concluded that because the lawyer had been previously communicating with the Deceased through his niece, there was insufficient evidence that the Deceased had reviewed and approved the final draft will. Thus, the Court ruled that it would not exercise its power to validate the 2023 Will. Perhaps this is a cautionary tale about not waiting too long to finalize your will and to be more direct in communicating with your lawyer when doing so.
[1] Madhani v. Fast, 2025 ONSC 4100 (CanLII) – https://www.canlii.org/en/on/onsc/doc/2025/2025onsc4100/2025onsc4100.html
[2] Succession Law Reform Act, R.S.O. 1990, c. S.26 – https://www.ontario.ca/laws/statute/90s26#BK24
[3] Electronic Commerce Act, 2000, S.O. 2000, c. 17 – https://www.ontario.ca/laws/statute/00e17#BK38