COURT FILE NO.: CV-24-00718288-00ES
DATE: 202 50710
ONTARIO
SUPERIOR COURT OF JUSTICE (Estates List)
IN THE ESTATE OF JAMSHED MAVALWALA, DECEASED
BETWEEN: ZEESHAN MADHANI, in his capacity as the Estate Trustee of the Estate of Jamshed Mavalwala Applicant – and – AVAU FAST, DARIUS MAVALWALA, CYRUS MAVALWALA, BAJUN MAVALWALA, AFRID MAVALWALA, SOHRAB CANTEENWALA also known as Sony Canteenwala, CHERRY MULVEY, EMMA MULVEY, RUSTAM CANTEENWALA also known as Rustom Canteenwala, KUMI DUCK, XERXES NAEGAMVALA, KAERA NAGNI, HOMAI WADIA, THEMI MISTRY and ZOROASTRAIN SOCIETY OF ONTARIO Respondents
William E.C. Parker, for the Applicant
No one appearing, for the Respondents
HEARD: March 28 and April 17, 2025
REASONS FOR JUDGMENT
A.A. SANFILIPPO J.
Overview
[ 1 ] Jamshed Mavalwala died on November 10, 2023, at 90 years of age (“Jamshed” or the “Deceased”). Jamshed was divorced, and was survived by two adult children, Darius Mavalwala and Cyrus Mavalwala, and by five siblings, Avau Fast, Kumi Duck, Homai Wadia, Themi Mistry, and Bajan Mavalwala, all of whom are Respondents in this Application. The Deceased was also survived by several nieces and nephews. Neha Madhani, also known as Neha Fast, is one of the Deceased’s nieces and her spouse, Zeeshan Madhani, is the Applicant in this proceeding.
[ 2 ] The Deceased executed a last will and testament on November 26, 2021 (the “2021 Will”). The validity of the 2021 Will is not challenged. The 2021 Will appoints the Applicant, Zeeshan Madhani, as the sole estate trustee, and appoints Neha Madhani as an alternate Estate Trustee. The lawyer who acted for the Deceased in the preparation of the 2021 Will and is the custodian of the original of the 2021 Will, Frederick J. Shuh, is named as a second alternate Estate Trustee.
[ 3 ] In December 2022, the Deceased retained a lawyer to act for him in the preparation of an updated last will and testament. The Deceased met with his lawyer and provided instructions on drafts that she prepared for his review. The Deceased’s lawyer advanced the preparation of the will and, by October 2023, had prepared what she considered to be the final draft will (the “2023 Draft Will”). The Deceased died on the morning that he was scheduled to attend at his lawyer’s office to finalize and execute his new will.
[ 4 ] Zeeshan brought this Application For Directions under Rules 75.01 and 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Zeeshan seeks a determination of whether the 2023 Draft Will is valid and effective as a testamentary document pursuant to section 21.1 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). If valid and effective, the 2023 Draft Will would revoke the 2021 Will.
[ 5 ] For the reasons that follow, I find that the 2023 Draft Will is not valid and effective as a testamentary document of the Deceased.
[ 6 ] I will respectfully refer to the parties in these Reasons by their first names.
I. THE EVIDENCE
[ 7 ] The evidence in support of this Application was provided by the Applicant, Zeeshan, in his affidavit sworn March 6, 2024; by his spouse, Neha, in her affidavit sworn February 1, 2024; and by the Deceased’s lawyer, Lisa Boutilier, in affidavits sworn February 29, 2024 and April 10, 2025. None of the Respondents delivered any responding evidence, although served and on notice of this Application.
[ 8 ] Neha is not a beneficiary under either the 2021 Will or the 2023 Draft Will. Zeeshan is not a beneficiary under the 2021 Will and would receive only the Deceased’s personal belongings under the 2023 Draft Will. Neither Neha nor Zeeshan is a residuary beneficiary under either document. I find that their evidence was tendered without self-interest, and is credible because their evidence is logically consistent, supported by exhibits and corroborated in pertinent part by the evidence provided by Ms. Boutilier. I do not admit elements of their evidence that constitute unreliable hearsay and were thereby incapable of admission even with consideration of the principled exception to the admission of hearsay evidence: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2, 42-47; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 1, 19-23.
[ 9 ] I will summarize the evidence that I found to form the factual basis of this Application.
A. Background
[ 10 ] The Deceased was a retired university professor of anthropology. Neha deposed, and I accept, that he was extremely intelligent, and there is no evidence of any incapacity or duress. At the time of his death, Jamshed was unmarried and estranged from his adult children, Darius and Cyrus. He lived alone in a rental apartment in Toronto, Ontario.
[ 11 ] The Deceased’s 2021 Will left the residue of his Estate in equal one-fourteenth (7.14%) shares per capita amongst the following family members who are alive at the time of his death: (a) his two sons; (b) his six then-surviving siblings; and (c) six of the Deceased’s nephews and nieces.
B. The Preparation of a New Will
[ 12 ] Neha deposed that at Jamshed’s request, she reached out to a law firm to assist him in updating his 2021 Will. In December 2022, Neha retained the law firm Bradshaw & Mancherjee, who forwarded to Jamshed, on December 16, 2022, a memorandum on Wills and Powers of Attorney, and a questionnaire to complete to start the process of preparing a new will.
[ 13 ] On January 20, 2023, Jamshed sent to his lawyers, by telefax, three pages of handwritten notes, written on the letterhead of the department of anthropology of the university where he formerly taught. I find that the handwritten notes are authentic in that they were written by Jamshed. Ms. Boutilier deposed that she spoke with Jamshed by teleconference to review with him the three pages of notes.
[ 14 ] A review of the three pages of notes together with Ms. Boutilier’s notations made contemporaneous with the teleconference shows that Ms. Boutilier understood the following regarding Jamshed’s intentions: (a) Jamshed wanted to continue Zeeshan’s appointment as his estate trustee, with Neha to continue to act as the alternate estate trustee; (b) Jamshed had not had contact with his two sons for over 25 years and wanted to exclude them from any inheritance; (c) Jamshed wanted to remove his sister, Avau Fast, and three of his nephews and nieces as beneficiaries; (d) for the family members who remained as residuary beneficiaries, Jamshed wanted to specify the recipient of their inheritance should they predecease Jamshed; and (e) Jamshed wanted to include, as a residuary beneficiary, the Zoroastrian Society of Ontario.
[ 15 ] After her teleconference with Jamshed, Ms. Boutilier prepared a draft will (the “First Draft Will”) and draft powers of attorney and forwarded these documents to Jamshed by regular mail on April 4, 2023. Jamshed called Ms. Boutilier on June 28, 2023 to say that he had not received anything, and the draft materials were sent again that day by regular mail.
[ 16 ] Ms. Boutilier deposed that Neha contacted her to advise that Jamshed had asked her to assist in advancing the preparation of his new will. Ms. Boutilier deposed that she obtained Jamshed’s instructions, by teleconference, to speak with Neha regarding his new will and powers of attorney. Ms. Boutilier accepted Neha’s role as an intermediary in the solicitor-client relationship on Ms. Boutilier’s intention to meet with Jamshed alone in the final meeting to review and execute the will, as was her standard practice.
[ 17 ] Neha sent Ms. Boutilier an email on August 3, 2023, stating that Jamshed requested some revisions to the First Draft Will, including the following: (a) Zeeshan and Neha are to receive one-half of Jamshed’s personal belongings; (b) the residuary beneficiaries were to be three of Jamshed’s sisters, his brother, two nieces and one nephew; (c) Jamshed wished to donate his body to his former university’s department of anatomy; and (d) Jamshed sought to endow a scholarship to be known as the North American Jamshed Mavalwala Scholarship Fund.
[ 18 ] Ms. Boutilier met with Jamshed on October 4, 2023 to review the First Draft Will together with Jamshed’s requested changes. Neha attended the meeting with Jamshed. This meeting lasted about 1.5 hours. This would be the only occasion in which Ms. Boutilier met with Jamshed in person.
[ 19 ] In accordance with Jamshed’s instructions, on October 15, 2023, Ms. Boutilier forwarded by email to Neha the second draft of the revised will (the “Second Draft Will”) together with her letter confirming the instructions that she had received and providing advice regarding the Second Draft Will. Ms. Boutilier requested clarifications regarding two issues: the description of the personal belongings; and the purpose of the proposed scholarship fund. The Second Draft Will contains ‘placeholder’ spaces for the insertion of further detail on these two issues.
[ 20 ] On October 28, 2023, Neha sent an email to Ms. Boutilier providing detail on the two issues that required further description. Neha wrote that she met with Jamshed and “went over the will” and that apart from the further details to be inserted, “[e]verything else looks good – let me know when final will can be signed and we’ll arrange to come by.” Ms. Boutilier implemented the two further changes and, later that same day, October 28, 2023, sent to Neha by email the third and final draft of the will, being the document referred to as the “2023 Draft Will”.
[ 21 ] Ms. Boutilier did not receive any communication from Jamshed, either directly or through Neha, regarding the 2023 Draft Will.
C. The Deceased’s Death Before Execution of the 2023 Draft Will
[ 22 ] A meeting was scheduled to proceed on November 10, 2023 at 10:00 a.m. for Jamshed to attend at Ms. Boutilier’s office, alone, to finalize and execute his new will. Ms. Boutilier sent to Jamshed a Statement of Account dated October 30, 2023. Jamshed prepared and signed a cheque to take to the meeting in payment of the Statement of Account. The cheque was found in an envelope on which Jamshed wrote: “Will payment Nov. 10 – Take Blanck (sic) cheque just in case.”
[ 23 ] Jamshed arranged for a Wheel-Trans ride to his lawyer’s office. On November 10, 2023, Wheel-Trans left a “We Missed You” note stating that Jamshed was a “No-Show” for an 11:20 a.m. pick-up at his home.
[ 24 ] Jamshed died in his apartment the morning of November 10, 2023.
II. THE ISSUE
[ 25 ] The sole issue raised by this Application is whether a declaration should issue under s. 21.1 of the SLRA that the 2023 Draft Will is valid and effective as a testamentary document of the Deceased.
III. LEGAL PRINCIPLES
[ 26 ] Section 21.1(1) of the SLRA provides as follows:
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.
[ 27 ] By the transition provision set out in s. 21.1(3) of the SLRA, s. 21.1(1) applies where the testator has died after January 1, 2022, being the day that section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force. As Jamshed died on November 10, 2023, s. 21.1(1) is applicable to the issue raised by this Application.
[ 28 ] Section 21.1(1) is not available to electronic documents. Section 21.1(2) provides that subsection 21.1(1) is subject to s. 31 of the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (the “ECA”). Section 31(1)(1.) of the ECA specifically exempts its application to “wills and codicils”, and s. 31(1)(2.) exempts its application to “trusts created by wills and codicils”.
[ 29 ] Section 21.1 is a curative provision. It is intended to relieve against failure to comply with the formal requirements in the SLRA required for a valid and effective will, including those set out in s. 4(2), as follows:
Valid execution of will
4 (2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges his signature in the presence of two or more attesting witnesses present at the same time;
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
[ 30 ] In George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.), the Manitoba Court of Appeal analyzed one of the precursors to s. 21.1 of the SLRA, namely, s. 23 of Manitoba’s Wills Act, C.C.S.M., c. W150. Justice Philp commented, at para. 58, that “the purpose of remedial provisions is to overcome the hardship and injustice – the consequences of the triumph of form over intent – which have often followed the literal application of the formal requirements found in will statutes.” Section 21.1 is such a remedial provision intended to overcome the hardship of imperfect compliance in the making of a will in Ontario.
[ 31 ] In George, the Court explained at paras. 29-31 that the formal statutory requirements of will execution have long been in place throughout the commonwealth jurisdictions. The requirement that a will must be in writing and signed by the testator, as required in Ontario by ss. 3, 4(2)(a) and 7 of the SLRA, has its origin in the Statute of Frauds, 1676 (U.K.) with respect to wills of real property and was made applicable to wills generally in the English Wills Act, 1837. A remedial provision such as s. 21.1 of the SLRA does not revoke the formal statutory requirements of will execution. Rather, s. 21.1 provides the court with the discretion to find that imperfect compliance, or even non-compliance, can be dispensed with, and to declare that an improperly executed or made will is valid and effective.
[ 32 ] The case law is clear that the court’s curative power under s. 21.1 must be viewed in the context of the SLRA as a whole and the well-established common law principles pertaining to the admission of a will to probate. As thoughtfully summarized in George, at paras. 60-61, “nothing can receive probate which was not intended to be a testamentary act by the testator.” The deceased must have intended “that the instrument record the final (but revocable) wishes of the deceased as to the disposal of his/her property after death.” The test is set out in George at paras. 65-66:
The term “testamentary intention means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death. […]
[…] Whether it is the deceased’s own instrument or the notes or writing made by a third party, the crucial question to be answered is whether the document expresses the animus testandi of the deceased – a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.
[ 33 ] These principles were applied by the British Columbia Supreme Court in Estate of Young, 2015 BCSC 182, at paras. 34-37, and then affirmed by the British Columbia Court of Appeal in Hadley Estate (Re), 2017 BCCA 311, at paras. 36 and 40, and adopted in Gibb Estate (Re), 2021 BCSC 2461, at para. 43. The principles that emerged may be summarized as follows:
(a) “A determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.”
(b) Two issues must be established. First, the document or writing must be shown to be authentic. “The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.”
(c) The non-compliant document must record a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”
(d) The deliberate or fixed and final intention need not be irrevocable, as valid and effective wills are revocable until the death of the testator. “Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.”
(e) The factors that might inform whether the document embodies the deceased’s testamentary intentions include “the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document”.
(f) The greater that the document departs from the formal statutory requirements, the harder that it may be for the court to be satisfied that it embodies the deceased’s testamentary intention.
[ 34 ] In the limited Ontario case law since s. 21.1 of the SLRA came into force on January 1, 2022, Ontario Courts have consistently adopted and applied these principles, most routinely to validate wills that were not properly witnessed. In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, Myers J. declared a will to be valid and effective where it was prepared by the deceased, set out his testamentary intentions in clear terms, and was signed but not witnessed. The document was authentic because it was provided by the deceased to his executor in a sealed envelope. Applying the principles set out in Young (Estate), the court cured the will notwithstanding the breach of the statutory requirement for witnessing set out in s. 4(2)(c) of the SLRA. Myers J. made a similar determination in Kertesz v. Kertesz, 2023 ONSC 7055, and in Vojska v. Ostrowski, 2023 ONSC 3894, where the non-compliant will was not witnessed by two witnesses, commenting at para. 12 that “[i]t is hard to imagine a more textbook example of a case for which the new power was intended”.
[ 35 ] In Marsden v. Hunt et al., 2024 ONSC 1711, Faieta J. declared an executed document to be a valid and effective will under s. 21.1 notwithstanding the failure to be properly witnessed. RSJ MacLeod reached a similar determination in Re: O’Neill Estate, 2024 ONSC 2228, as did Hilliard J. in Groskopf v. Rogers, 2023 ONSC 5312.
[ 36 ] In Salmon v. Rombough, 2024 ONSC 1186, Leroy J. applied s. 21.1 to declare a document made by the deceased by his own handwriting with inserted extracts from a prior will, which was then signed but not witnessed, to be valid as a will. Leroy J. applied the principles listed above from Young, holding in paras. 107-108 that the proffered document must be a deliberate or fixed and final expression of how the deceased intended to dispose of property on death, and that “[a] document can’t be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death if the Applicant is unable to demonstrate that the testator knew and approved of the content.”
[ 37 ] In McKinlay v. Currie et al., 2025 ONSC 3471, Bordin J. declined to grant relief under s. 21.1 on the finding that the proffered document, primarily written by the deceased’s cousin but signed by the deceased, did not record the deceased’s deliberate or fixed and final expression of intention as to the disposal of her property on death. A similar result was reached in Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315, where Chang J. declined to find that two handwritten codicils were valid and effective under s. 21.1 on the basis that there was insufficient evidence to support a finding that the documents set out the deceased’s testamentary intentions.
[ 38 ] This survey of recent case law shows a uniform and consistent application of the principles summarized above from Young and George and demonstrates that the analysis under s. 21.1 is markedly fact-specific.
IV. ANALYSIS
[ 39 ] The Applicant established that all parties with a financial interest in this Estate were served with the Application Record. None have appeared. This Application thereby proceeded unopposed.
[ 40 ] Notwithstanding that the declaration sought in this Application was unopposed, the nature of the authority granted by s. 21.1 of the SLRA obligates the Application Judge to ensure that the requirements of s. 21.1 are satisfied on the evidence: Hejno v. Hejno, 2025 ONCA 249, at paras. 2 and 9. In granting a motion to extend the time for an appeal of an Application Judge’s decision to validate two technically deficient wills, the Court of Appeal stated, in Hejno at para. 2, that to make an order validating the wills under s. 21.1, “the application judge had to be satisfied that the documents set out the testamentary intentions of the deceased.”
[ 41 ] The Applicant has the burden of establishing that the requirements of s. 21.1 are met on a civil balance of probabilities: George, at paras. 20, 36; Cruz, at para. 5; McKinlay, at para. 22; Salmon, at para. 127.
A. The First Step: The 2023 Draft Will Must Be Authentic
[ 42 ] The first step in the s. 21.1 analysis is to determine whether the 2023 Draft Will is authentic. I have no doubt that the 2023 Draft Will is authentic in the sense that it was created and preserved by Ms. Boutilier. I accept Ms. Boutilier’s evidence of the steps that she took in the drafting and safekeeping of the 2023 Draft Will.
[ 43 ] However, the 2023 Draft Will is an electronic document within the meaning of s. 1(1) of the ECA, which defines “electronic” as including a document that is “created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means and “electronically” has a corresponding meaning.”
[ 44 ] The ECA provides for recognition of electronic documents and electronic signatures in Ontario, but s. 21.1(2) of the SLRA states that s. 21.1(1) is subject to s. 31 of the ECA. Section 31 of the ECA provides that the ECA does not apply to “wills and codicils” and to “trusts created by wills and codicils”. The provisions of the ECA that validate electronic documents as equivalent to a document in writing, such as ss. 4 and 5, do not apply to wills, codicils and trusts created by wills and codicils.
[ 45 ] The curative power provided by s. 21.1 applies to “a document or writing that was not properly executed or made”. By operation of s. 21.1(2) of the SLRA and s. 31 of the ECA, the “document or writing” cannot be an electronic document but rather must be in physical form: Allison v. McBride, 2025 ONSC 2828, at footnote 2; White v. White, 2023 ONSC 7286, at para. 32.
[ 46 ] Here, the 2023 Draft Will existed only as an electronic document stored in Word document format in Ms. Boutilier’s computer’s directory and as provided to Neha in electronic form. There is no evidence that the 2023 Draft Will was used in physical form at any material time. As an electronic document cannot be a will, and as the 2023 Draft Will is an electronic document, the 2023 Draft Will cannot be declared under s. 21.1 to be the valid and effective last will and testament of the Deceased. This determination is, alone, dispositive of this Application.
[ 47 ] For completeness of analysis, and in the event that my assessment of the authenticity of the 2023 Draft Will and the application of s. 21.1(2) of the SLRA and s. 31 of the ECA is incorrect, I will determine whether the 2023 Draft Will sets out the testamentary intentions of the Deceased for the purposes of s. 21.1.
B. The Second Step: The 2023 Draft Will Must Represent the Deceased’s Testamentary Intentions
[ 48 ] The second step in the s. 21.1 analysis is to determine whether the 2023 Draft Will expresses Jamshed’s deliberate or fixed and final expression of intention as to the disposal of his property on death. I will explain why I find that it does not.
[ 49 ] This case is factually different in one material way from the circumstances in Cruz, Vojska, Kertesz, Marsden, O’Neill Estate, Groskopf, and Salmon, all being cases in which the proffered will was validated under s. 21.1. All the proffered documents or writings in those cases were signed by the deceased. Here, the 2023 Draft Will was not signed by Jamshed.
[ 50 ] Our court has found an unsigned document or writing to be valid and effective under s. 21.1. In Allan et al. v. Thunder Bay Regional et al., 2024 ONSC 3260, the direction of the court was sought regarding the validity and effectiveness of an unsigned handwritten codicil. Pierce J. noted that s. 7 of the SLRA requires that a will, whether holograph or not, must be signed by the testator to be valid, but held that the failure to sign the handwritten codicil constituted improper execution capable of being cured under s. 21.1. Pierce J. found that the deceased wrote his name and address in the body of the handwritten codicil and affixed a date along with an explanation of his intentions, and held, at para. 13, that “[t]here is no doubt that the testator intended the holograph document to have testamentary effect, even though it was not properly executed.” A similar holding was made in Grattan v. Grattan, unreported, 22-0054, February 1, 2023 (Belleville).
[ 51 ] I agree with the finding in Allan, that an unsigned document or writing comes within s. 21.1 as a “document that was not properly executed or made” on the basis of the analysis set out by the Manitoba Court of Appeal in George, which I adopt. There, the Court of Appeal had under consideration whether a letter sent by the deceased’s accountant to the deceased could be declared a valid and effective will of the deceased. The Court of Appeal held that it could not because it did not embody the testamentary intentions of the deceased, and undertook this analysis even though the proffered document was a third party document that was neither written nor signed by the deceased.
[ 52 ] In considering the role of a signature in the will-making process, the Manitoba Court of Appeal explained in George, at paras. 28-32, that the signature of the testator is a part of the execution formalities, but that signature of the document or writing is not a pre-condition to the application of the curative power set out by statute. The lack of a signature constitutes improper execution of the document or writing. On this holding, the third party document under review in George, the accountant’s letter, could be considered for validation even though it was not written nor signed by the deceased. Similarly, here, the third party document proffered for validation, the 2023 Draft Will prepared by the lawyer, can be considered for validation under s. 21.1 even though it is unsigned by the Deceased.
[ 53 ] Put simply, a document or writing is not excluded from consideration as a valid and effective will under s. 21.1 because it is unsigned. Rather, a document or writing is excluded from being found to be a valid or effective will, whether signed or unsigned and whether handwritten by the deceased or prepared professionally, when the document or writing does not express the deliberate or fixed and final intentions of the deceased.
[ 54 ] However, the absence of the deceased’s signature does have a consequence in the s. 21.1 analysis. The farther that the proffered document is removed from the formality requirements set out in the SLRA, including ss. 3, 4(2)(a) and 7, the more difficult the task for the Applicant to meet the onus of establishing that a declaration should be rendered under s. 21.1: George, at paras. 81 and 97. As Myers J. stated in Allison, at para. 16, “[t]rying to decide if some notes or even a draft will is final is much more substantive in nature” than assessing whether a will might be declared valid and effective when missing the signature of a witness.
[ 55 ] There is a reason for heightened caution when considering an unsigned document or writing said to express testamentary intentions. Signature by the testator has a significant role in focusing the testator on the importance and meaning of the testamentary dispositions. The act of affixing a signature is a big step for a layperson planning for wealth transfer on death. Although the will may be revoked or modified by codicil, it is, at the time of signature, a final statement, and goes a long way to determining whether the testamentary intentions set out in the document are the testator’s deliberate or fixed and final intentions. In George, Justice Philp summarized some of these considerations at para. 83:
Testators do change their minds! And sometimes their instructions are misinterpreted or misunderstood. It is a matter of notorious fact that even formal wills prepared by lawyers after full and careful instructions require, on occasion, amendments or alterations at the time of execution, or even require redrafting after the testator has reviewed the document. The cautionary and evidentiary functions of the formalities of the Act operate to ensure that in those kinds of situations the will that is eventually executed by the testator represents his/her testamentary intentions.
[ 56 ] Here, the Second Draft Will was not sent directly to Jamshed for review but rather was sent to Neha. Jamshed did not provide any comment directly to his lawyer, but rather Neha communicated to Ms. Boutilier, on October 28, 2023, that she “went over the will” with Jamshed and that apart from the further details to be inserted, “[e]verything else looks good.” This evidence is hearsay and of dubious reliability. Even if I were prepared to give any weight to this evidence, the statement that the Second Draft Will “looks good” is not equivalent to the expression of a deliberate or fixed and final intention, seen particularly here because the Second Draft Will was later changed. There is no evidence that Ms. Boutilier reached out to Jamshed to confirm his instructions regarding the Second Draft Will as communicated through Neha; rather, she left this for the final review of the draft will with Jamshed, alone, to take place at the time of execution, as was her standard practice.
[ 57 ] Importantly, after sending to Neha the 2023 Draft Will, there is no evidence that the 2023 Draft Will was reviewed by Jamshed or that he approved of its contents. There is not even any email communication by Neha to Ms. Boutilier that the 2023 Draft Will had been provided to Jamshed. As a result, there is no evidence that Jamshed instructed or even considered that the 2023 Draft Will expressed his deliberate or fixed and final intentions. This is critical because the time for assessment of whether the document or writing contains the testamentary intention of the testator is at the time that the document or writing is made: Groskopf, at para. 27. Here, there is no evidence that the testator approved of the 2023 Draft Will at the time that it was made.
[ 58 ] There is a plausible reason why Ms. Boutilier did not reach out to Jamshed directly at the time of the transmission of the Second Draft Will and upon sending the 2023 Draft Will. Ms. Boutilier deposed that while she permitted Neha to sit in on her October 4, 2023 meeting with Jamshed, and accepted instructions from Jamshed through Neha, that it is her “practice without fail to meet alone with clients when conducting a final review of draft Wills and Powers of Attorney and when attending to the execution of such documents.” There is an important purpose for this practice. Ms. Boutilier’s meeting with Jamshed, alone, provided the lawyer and client, while focusing only on the final draft to the exclusion of all other voices, a final opportunity before execution to determine whether the draft will sets out accurately the deliberate or fixed and final intentions of the testator and, if not, to make final revisions. This final step did not take place because of Jamshed’s death and there was no earlier meeting that stands as a proxy for this final meeting. As a result, the drafting lawyer was not in a position to assess whether the 2023 Draft Will expressed the deliberate or fixed and final intentions of Jamshed.
[ 59 ] Expressions of intentions as to how a testator would like their property to be disposed of after death are not testamentary intentions. Expressions of intentions, alone, are insufficient to ground a valid will. I have no doubt that Jamshed intended to change his 2021 Will. The Applicant has presented ample evidence of Jamshed’s expression of intention. However, the Applicant did not establish, on a balance of probabilities, that the 2023 Draft Will contains a deliberate or fixed and final expression by Jamshed, at the time that the document was made, of the disposal of his property on death. On this finding, the relief sought in this Application cannot be granted.
V. DISPOSITION
[ 60 ] A Judgment shall issue that the document entitled “Last Will and Testament of me, Jamshed Mavalwala”, unsigned but dated November 10, 2023, is not valid and effective as a testamentary document.
VI. COSTS
[ 61 ] The Applicant brought this Application in furtherance of the administration of this estate in his capacity as executor and trustee under the 2021 Will. The identification of the valid and effective will for probate is a proper task for the executor and trustee and material to the administration of the estate. An Order shall thereby issue that the Applicant’s costs of this application shall be paid, on a full indemnity basis, from the capital of the estate, subject to establishing the reasonableness and appropriateness of the amount of the costs as part of the passing of accounts of this estate.
A.A. Sanfilippo J.
Released: July 10, 2025
COURT FILE NOS.: CV-24-00718288-00ES
DATE: 20250710
ONTARIO SUPERIOR COURT OF JUSTICE (Estates List)
BETWEEN: ZEESHAN MADHANI, in his capacity as the Estate Trustee of the Estate of Jamshed Mavalwala Applicant – and – AVAU FAST, DARIUS MAVALWALA, CYRUS MAVALWALA, BAJUN MAVALWALA, AFRID MAVALWALA, SOHRAB CANTEENWALA also known as Sony Canteenwala, CHERRY MULVEY, EMMA MULVEY, RUSTAM CANTEENWALA also known as Rustom Canteenwala, KUMI DUCK, XERXES NAEGAMVALA, KAERA NAGNI, HOMAI WADIA, THEMI MISTRY and ZOROASTRAIN SOCIETY OF ONTARIO Respondents
REASONS FOR JUDGMENT
A.A. Sanfilippo J.
Released: July 10, 2025