The decision in Samide v. Taylor, 2026 ONSC 3589 provides clarity on the interplay of the Succession Law Reform Act (“SLRA”) and the Electronic Commerce Act (“ECA”), specifically the applicability of these statutes on wills that only exist electronically.
Robert Samide (“Robert”) died unexpectedly in July 2024. He was survived by his children: Jessica, Nicole and Christopher, as well as his domestic partner, Shantel Taylor (“Shantel”) and her three sons.
Robert signed a last will and testament in July 2013 which left his estate to his three children (the “First Will”). The First Will was duly executed and contained the signatures of Robert and two witnesses.
After Robert’s death, two versions of a second document dated March 4 and 5, 2024 were discovered on his computer (collectively, the “Second Will”). The only material difference between the two versions of the Second Will was the list of Robert’s assets and the details of certain bequests. The Second Will left Robert’s estate to Shantel with certain bequests to Robert’s children and Shantel’s sons. The Second Will appeared to be drafted using a will kit, and was unsigned and unwitnessed.
Two related proceedings were commenced. Jessica commenced an application for directions concerning the validity of the Second Will. Shantel brought an application seeking an order that the Second Will was indeed a valid testamentary document. The following question was before the Court: is the Second Will a valid last will and testament pursuant to s. 21.1 of the SLRA?
s. 21.1 of the SLRA allows the Court to issue an order validating an imperfectly drafted will if the Court is satisfied that the document sets out the testamentary intentions of a deceased person. The objective of s. 21.1 is to provide relief against the harsh consequences of a testator’s failure to comply with the strict formalities of wills as set out in s. 4 of the SLRA. s. 21.1 of the SLRA is subject to s. 31 of the ECA, which states that the Act is inapplicable to wills and codicils.
Caselaw regarding the interaction of s. 21.1 of the SLRA and s. 31 of the ECA is emerging. The Court was tasked with assessing with opposing decisions regarding whether a will that only exists electronically may be validated under s. 21.1 of the SLRA.
Madhani v. Fast
In Madhani v. Fast, the deceased’s lawyer prepared a final draft of a new will. On the morning the deceased was scheduled to attend his lawyer’s office to execute the will, the deceased passed away. The final draft was never printed, and the deceased only received a copy via email. The final draft was never signed or witnessed.
Justice Sanfillippo held that the final draft of a will that only existed electronically was not a valid will pursuant to s. 21.1 of the SLRA.
Firstly, as s. 21.1 of the SLRA was subject to s. 31 of the ECA, which explicitly states that the ECA does not apply to “wills and codicils” and to “trusts created by wills and codicils”. Furthermore, Justice Sanfilippo found that s. 21.1 only applies to “a document or writing”, not electronic documents. As the final draft was never used in physical form and only existed electronically, it could not be validated under s. 21.1 of the SLRA.
Gebramariam v. Menghesha
In Gebramariam v. Menghesha, the deceased sent an email to several persons while alive with the subject reading “please be my witness”. The email had no substantive content and only attached a single-page document titled “Nabute’s [the deceased] Will”. The document was typed, unwitnessed, unsigned and only existed electronically. The applicant, also the deceased’s sister, brought an application to validate the electronic document under s. 21.1 of the SLRA.
Justice Corthorn disagreed with Justice Sanfilippo’s interpretation of s. 21.1 in Madhani. Justice Corthorn found that when the SLRA and ECA were read together, there was no prohibition against the reliance on an electronic document as “a document or writing” for the purpose of s. 21.1(1) of the SLRA. Therefore, Her Honour found it was open to the Court to validate an electronic document as a fully effective testamentary document, if the other requirements of s. 21.1 were met. While s. 21.1 only applied to a “document” or “writing”, Justice Corthorn pointed out that the SLRA does not define either term.
Therefore, Justice Corthorn concluded that if all the other requirements are met, the SLRA does not prohibit reliance on an electronic document in a s. 21.1 application.
Analysis
The matter before the Court was one of statutory interpretation. Justice Rady held the following interpretation of s. 21.1 of the SLRA: “I interpret this section to mean that an imperfectly compliant will can be validated by the Court in certain circumstances. However, the power to validate is subject to s. 31 of the ECA.”
s. 4 of the ECA states that “[i]nformation or a document to which this Act appliesis not invalid or unenforceable by reason only of being in electronic form. (emphasis added)” However, s. 4 is also subject to s. 31(1) of the ECA, which explicitly states that the ECA does not apply to wills and codicils.
When the SLRA and ECA are read together, Justice Rady found an electronic will cannot be the functional equivalent of a hard copy document and the Court cannot validate an imperfect will pursuant to s. 21.1 if that will that only exists electronically.
Even if s. 21.1 applied, Justice Rady also found that the evidence did not prove that the Second Will expressed Robert’s fixed and final testamentary intention.
The parties agreed that the Second Will was authentic because it was preserved on Robert’s personal computer. Unlike the First Will, the Second Will was unsigned, unwitnessed and only existed electronically. Robert clearly understood the formalities required of wills because he properly executed the First Will. Furthermore, the fact that there were two versions of the Second Will suggested that the document was a work-in-progress rather than a final product. Finally, the Second Will was drafted four months before Robert died. In those four months, Robert took no steps to duly execute the Second Will. All of these factors are contrary to fixed and final intention.
Therefore, the Court declined to validate the Second Will pursuant to s. 21.1 of the SLRA.
Conclusion
As self-drafted wills using wills kits become more popular, testators are reminded that an unsigned and unwitnessed will that only exists electronically will not be validated by the Court. Testators must ensure their wills meet the formal requirements as outlined in the SLRA.
