Almost a Will: How Ontario Courts Deal with Imperfect Documents

What happens if a will is not signed properly, is missing a witness, or exists only as an unsigned handwritten note? For years, Ontario law had a strict answer: Such documents were invalid no matter how clearly they reflected someone’s final wishes. That changed in 2022 with the introduction of section 21.1 of the Succession Law Reform Act. It gives the court discretion to validate a defective will by declaring it authentic, and recognizing it represents a fixed and final expression of testamentary intent.

Since then, a growing body of case law has clarified when the court will treat an imperfect document as a valid will. This blog summarizes key themes.

1. Wills signed by the testator but without proper witnessing

The court has treated documents favourably when they are signed by the testator but fail to meet the witnessing requirements. This includes handwritten wills[1] with no witnesses and solicitor-prepared wills[2] missing one or more witness signatures. Where the signature is authentic and the document clearly conveys testamentary intention, the court has accepted that substantial compliance may apply.

2. Draft wills that were reviewed and approved

Unsigned lawyer-prepared drafts[3] may, in limited circumstances, satisfy section 21.1. The determinative question is whether the deceased reviewed the draft and approved it as a final expression of their intentions. Where the evidence shows a complete and considered plan that the testator regarded as final, validation has been found to be appropriate. However, drafts that were still under development or never reviewed by the testator consistently have been deemed insufficient.[4]

3. Informal or handwritten testamentary documents

Informal writings continue to play a significant role. The court has validated handwritten notes[5], fill-in-the-blank forms[6], and testamentary documents that are unclear or imperfectly worded.[7] They succeed when the surrounding evidence supports the authenticity of the writing and demonstrates that the deceased intended it to operate as a will. Factors such as related documents stored together, consistent statements made to others, or the context of end-of-life decision making often strengthen the case.

4. Handwritten amendments or codicils to existing wills

Handwritten amendments or codicils[8] may also be validated. Even without witnesses, the court may give effect to such writings where the deceased clearly intended to alter their earlier testamentary plan. The surrounding circumstances, including corroborating statements, declining health, or conversations about changes, often help confirm the finality of the amendment.

5. Documents that courts will not validate

Section 21.1 cannot be used to validate electronic wills or digital drafts because the Electronic Commerce Act, 2000, S.O. 2000, c. 17 expressly excludes electronic documents from operating as wills in Ontario.[9] Testamentary documents that were not reviewed or approved by the deceased, or that were mostly prepared by others without clear evidence of adoption by the testator, are unlikely to be deemed acceptable.[10] Even where a will might otherwise be validated, section 21.1 cannot fix provisions that are invalid under law.[11]

Section 21.1 is a curative tool, not a creative one

Section 21.1 allows the court to forgive technical deficiencies, but only where the document itself is considered authentic and representing a fixed and final expression of testamentary wishes. The court will not infer missing intention based on speculation, convenience, or assumptions about what the deceased “must have wanted.”[12]

For Ontarians, the message is clear. Section 21.1 offers meaningful flexibility and prevents formal errors from invalidating legitimate estate plans. However, it is not a replacement for a properly executed will.

Relying on the court to fix an imperfect document can result in costly litigation, uncertainty for family members, and the real risk that a person’s true intentions will not be upheld. Obtain proper legal advice to ensure your final wishes are documented in a valid will.

At Goddard Gamage, we assist clients both in planning ahead for themselves and—when a loved one has not done this—in navigating through difficult situations.