“Section 21.1 of the SLRA allows the court to validate a document that is not a properly signed will. The court can order that the improperly made document is nevertheless valid and effective as the will of a deceased person. The section says:
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. 2021, c. 4, Sched. 9, s. 5.
Transition
(3) Subsection (1) applies if the deceased died on or after [January 1, 2022] the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.
This section allows the court to recognize as a valid will a document that, “sets out the testamentary intentions of a deceased.”
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. Counsel did not discuss the effect of s. 21.1(2) or s. 31 of the Electronic Commerce Act, 2000, SO 2000, c 17. The latter section provides that the ECA does not apply to wills. Section 5 of the ECA says that:
A legal requirement that information or a document be in writing is satisfied by information or a document that is in electronic form if it is accessible so as to be usable for subsequent reference.
Without the recognition provided by s. 5 of the ECA, it seems that notes or a draft will stored on counsel’s computer system or a later printout of such an electronic file may not be a “document or writing” for the purpose of s. 21.1. While that issue is not directly before me today, I do need to consider whether I should be granting access to the lawyer’s computer files if the contents of those files are not capable of being recognized as wills under s. 21.1.
No one knows with certainty yet whether there are any limits on the types of documents that might be recognized as wills or what limits may apply.
In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629 (CanLII), I recognized as a valid will under s. 21.1 of the SLRA, a document that the deceased person prepared as a will but failed to have witnessed. The deceased person knew that witnesses were required, but he thought they could sign on later. The document had been carefully kept as the deceased’s will.
In Vojska v Ostrowski, 2023 ONSC 3894 (CanLII), I recognized as a valid will under s. 21.1 of the SLRA, a document that had been prepared as a formal will by a lawyer. It was signed by the deceased person in a formal signing ceremony with the lawyer and another witness. By mistake, the lawyer did not sign the will however.
In Groskopf v. Rogers et al., 2023 ONSC 5312 (CanLII), Hilliard J. recognized as a valid will under s. 21.1 of the SLRA, a “fill-in-the-blanks” form of will document that the deceased person signed but did not date or have witnessed. She kept it in a lock box with other notes about the distribution of her estate.
Recently, in Kertesz v. Kertesz et al., 2023 ONSC 7055 (CanLII) I recognized as a valid will under s. 21.1 of the SLRA, a note prepared by a deceased person who knew his death was imminent. The note was unsigned. But it demonstrated on its face that the deceased person intended it to be a will; that he understood the scope of his assets; he understood the pool of possible beneficiaries; and that he understood how each of the foregoing interrelated.
In each of these cases the court also found that the document being recognized was a “fixed and final” expression of the deceased person’s testamentary intentions as at the time of its creation. In each, there was an imperfectly prepared will. To date, I am unaware of any Ontario decision that goes beyond fixing or ignoring execution errors on documents that, if properly signed, would have been wills.”
White v. White, 2023 ONSC 7286 (CanLII) at 30-38