Many families are surprised to learn that a document that does not meet Ontario’s formal will requirements may still be recognized by the courts. This issue often arises when a loved one passes away leaving behind an unsigned draft, a handwritten note, or even an email expressing their wishes.
Since January 1, 2022, Ontario courts have had new authority under section 21.1 of the Succession Law Reform Act (SLRA) to validate a document that was not properly executed. The goal is to honour genuine testamentary intent while still maintaining safeguards against fraud and uncertainty.
The central question for judges is simple but powerful: does the document clearly express the deceased’s fixed and final intention to distribute their estate?
If the answer is yes, the court has discretion to treat that document as a valid will.
Why This Change Matters
Before this law came into force, Ontario courts had no flexibility—an unsigned or improperly witnessed document could not be validated. That rigidity often led to unfair outcomes. Families were left navigating intestacy laws even when the deceased had written down clear instructions that just fell short of legal formalities.
The new validation power reflects a shift toward common-sense fairness. It allows the court to focus on what truly matters: the deceased’s intention.
But this does not mean every note or draft will qualify. The evidence must show that the document was meant to be final, not a preliminary version or casual expression of wishes.
What “Fixed and Final Intention” Means
Courts have described “fixed and final intention” as the point where a person has made a deliberate decision about how their estate should be distributed and no longer views the document as a draft or a temporary record.
Factors that may support this conclusion include:
-
The document uses will-like language such as “I give,” “I direct,” or “I appoint.”
-
It appears to have been carefully thought out or reviewed by a professional.
-
It was created close in time to the person’s passing.
-
The person told others that this was their will.
-
There is no evidence they planned to make changes or a new version.
On the other hand, if a document includes phrases like “I plan to sign this later” or “this is just a draft,” the court is unlikely to view it as final.
What Happens When the Court Declines to Validate
If a document does not meet the standard of fixed and final intention, it will not be validated. In those situations:
-
The estate may be distributed under a previous validly executed will, if one exists.
-
If no prior valid will exists, the estate is distributed according to Ontario’s intestacy laws.
-
Beneficiaries named in the draft or informal document may receive nothing.
-
The family may face added costs, delays, and emotional strain.
For executors and beneficiaries, understanding whether a document qualifies for validation can be critical in deciding whether to proceed with a court application.
Practical Guidance for Families
If a family member has passed away and left an informal or unsigned document, there are several important steps to take:
-
Preserve everything – keep copies of all drafts, emails, and handwritten notes.
-
Gather context – collect statements or messages that show what the deceased said about the document.
-
Evaluate consistency – review whether their other actions, such as property transfers or lawyer communications, align with what the document says.
-
Seek legal advice early – a lawyer can assess whether the document meets the evidentiary standard and help decide whether to apply for validation under section 21.1.
The Bigger Picture
The validation power brings Ontario in line with other provinces such as British Columbia and Manitoba, which have long had similar legislation. The law represents a more compassionate and realistic approach to estate planning, recognizing that people sometimes fall short of formal legal steps while still clearly expressing their wishes.
However, validation remains a discretionary remedy. Every case turns on its facts, and not all documents will meet the necessary threshold. Families should be cautious before assuming that an unsigned or incomplete will can simply be “fixed” by the court.
How Kimel Law Group Can Help
At Kimel Law Group, we help families across Ontario navigate will challenges, estate disputes, and probate issues. When a document’s validity is uncertain, we analyze the evidence, assess the strength of a potential validation application, and guide clients through every step of the process.
Our focus is always on clarity, compassion, and ensuring that the deceased’s genuine intentions are respected.
Contact us today to schedule a consultation and learn how we can help you navigate Ontario’s evolving approach to will validation.