A Potential Turning Point Under Section 21.1 of the Succession Law Reform Act
From time to time, the law undergoes fundamental change. Long-standing principles can be reshaped almost overnight through provincial or federal legislation.
One such shift occurred on January 1, 2022, with amendments to Ontario’s Succession Law Reform Act (the “SLRA”). The SLRA is one of Ontario’s legislations that governs both the preparation of wills and the administration of estates. Among the changes introduced was the removal of the rule that marriage automatically revokes a prior will. While noteworthy, this amendment was modest compared to the introduction of section 21.1.
Prior to section 21.1, Ontario was a “strict validity” jurisdiction. If a will did not comply precisely with the formal execution requirements of the SLRA, it was invalid. A misplaced signature, a missing witness, or even a few typed words in an otherwise handwritten will could defeat a testator’s intentions entirely. Even where evidence overwhelmingly demonstrated the deceased’s wishes, courts had no discretion to give effect to a non-compliant document. This rigid approach was intended to protect vulnerable individuals from fraud or coercion.
Section 21.1 fundamentally altered that framework. Following the lead of several other provinces, Ontario introduced a curative provision allowing courts to validate documents that were not formally executed as wills, provided the court is satisfied that the document reflects the deceased’s testamentary intentions.
In applying section 21.1, Ontario courts looked to jurisprudence from other jurisdictions and developed a functional test: if the document is authentic and represents the deceased’s final intentions regarding the disposition of their property, it may be validated as a will.
At first glance, however, section 21.1 appeared to contain an important limitation. Subsection 21.1(2), simply titled “No electronic wills” provides that the court’s validating power is subject to section 31 of the Electronic Commerce Act, 2000 (“ECA”). The ECA generally permits documents to be created and validated in electronic form; however, section 31 expressly excludes wills from its application.
The leading case interpreting subsection 21.1 was White v. White, 2023 ONSC 7286, where the Court stated that “the only limitations on the face of the statute are that the deceased must have died after January 1, 2022 and that the document sought to be recognized as a will cannot be in electronic form.” Numerous subsequent Ontario decisions followed this interpretation, concluding that electronic wills could not be validated under section 21.1.
That understanding may now be in flux.
In Gebremariam v. Menghesha, 2026 ONSC 545 (“Gebremariam”), Justice Corthorn undertook a detailed analysis of the interaction between the SLRA and the ECA. His reasoning reframes the legal landscape.
Justice Corthorn observed that while the SLRA requires a will to be “in writing,” it does not define “writing” or “document,” nor does it expressly prohibit electronic records. The ECA generally permits electronic documents to satisfy legal requirements such as writing and signature, although it excludes wills from its direct application. Importantly, the ECA’s purpose is to facilitate the creation of electronic documents and prevent legal consequences arising from unmet formal requirements. It does not address how courts may later validate documents.
Justice Corthorn concluded that the ECA exclusion merely prevents individuals from relying on the ECA to create electronic wills. It does not prevent a court from recognizing an electronic document under section 21.1 of the SLRA.
Because section 21.1 already operates as a curative provision allowing courts to validate documents that fail to meet traditional formalities, and because neither statute expressly prohibits reliance on electronic documents in this context, Justice Corthorn held that there is no legal barrier to considering electronic documents in a section 21.1 application. When read together, the statutes permit courts to potentially validate electronic documents as wills, provided the document reflects the deceased’s testamentary intentions.
Justice Corthorn further noted that prior Ontario decisions rejecting electronic wills relied on White v. White, but failed to consider a footnote in that case stating that the Court had not been asked to decide whether electronic documents could be validated under section 21.1. As a result, Justice Corthorn held that White was obiter on this point and not binding.
Justice Corthorn did not validate the electronic document before him, as he was only addressing the preliminary question of whether the Court could validate such a document under section 21.1. Nevertheless, his reasons confirm that courts are not precluded from validating electronic wills. This opens the door to the potential validation of documents created in Word, sent by email, or possibly communicated through other electronic means, such as text or social media.
In short, Ontario law may now permit electronic documents to be validated as wills, representing a significant departure from the prevailing interpretation of section 21.1. Given the conflicting Superior Court decisions, it is likely that appellate guidance will be required before the law is settled.
What Does This Mean for Estate Planning?
These developments underscore the importance of obtaining experienced legal advice when preparing estate plans or administering estates. While courts may increasingly validate improperly executed documents, the cost of litigating a section 21.1 application will almost always exceed the cost of proper will preparation at the outset.
For practitioners, Gebremariam highlights both expanded opportunities and heightened risk. Informal electronic communications may now carry testamentary significance, increasing uncertainty and the potential for disputes.
For clients, this evolving landscape reinforces a simple truth: clear, professionally prepared estate planning remains the best way to ensure that your wishes are respected.
If you have questions about whether an informal document (including an email, text message, or draft Word document) could be treated as a will, or if you want to ensure your estate plan is properly prepared and executed, Pavey Law LLP can help. Our team advises on will and estate planning, as well as estate litigation and court applications. Contact us to book a consultation to review your circumstances and take the next step with confidence.
See Marsden v. Hunt et al. 2024 ONSC 1711; Madhani v. Fast, 2025 ONSC 4100; and Allison v. McBride, 2025 ONSC 2828