Samide v. Taylor, 2026 ONSC 3589

CITATION: Samide v. Taylor, 2026 ONSC 3589

COURT FILE NO.: CV-24-3830

DATE: 20260618

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF ROBERT JOSEPH SAMIDE, DECEASED

BETWEEN:

Court File No. CV-24-3830

JESSICA LYNN SAMIDE

Applicant

• and –

SHANTEL NICOLE TAYLOR, NICOLE MARIE SAMIDE, CHRISTOPHER ROBERT SAMIDE, VAN WYATT TAYLOR, CAL TAYLOR, FINN TAYLOR

Respondents

AND BETWEEN:

SHANTEL NICOLE TAYLOR, in her capacity as a named Estate Trustee of the Estate of Robert Joseph Samide, and in her personal capacity

Applicant

• and –

JESSICA LYNN SAMIDE, NICOLE MARIE SAMIDE, CHRISTOPHER ROBERT SAMIDE, VAN WYATT TAYLOR, CAL TAYLOR, FINN TAYLOR

Respondents

Michael Bolotenko, for the Applicant

W. Scott Gallagher, for the Respondent, Shantel Nicole Taylor

Court File No. CV-24-3900

W. Scott Gallagher, for the Applicant

Michael Bolotenko, for the Respondent, Jessica Lynn Samide

HEARD: December 31, 2025, Additional Written Submissions March 18, 2026, and April 8, 2026

REASONS FOR DECISION

RADY J.

Introduction

1Three substantive issues are raised in these applications. The first is whether a draft electronic will that was never printed, signed or witnessed can be validated pursuant to s. 21.1(2) of the Succession Law Reform Act, R.S.O. 1990, c.S.26 (“SLRA”). Second, if the answer to the first issue is yes, does the draft electronic will express a deliberate, fixed and final testamentary intention? Finally, there is an issue respecting entitlement to dependent’s relief.

Procedural Issue

2Two applications have been commenced, the first by Jessica Samide against Shantel Taylor et al. (Court file CV-24-3830).

3She seeks an order giving the Court’s opinion, advice and direction respecting several questions paraphrased as follows:

1. is the unsigned and unwitnessed electronic document purporting to be the last will and testament of Robert Joseph Samide, dated March 4, 2024, an electronic will?

2. if the answer to question 1(a)(i) above is yes, then an Order declaring:

i. that the 2024 electronic document is subject to section 31 of the Electronic Commerce Act, 2000. 2001, c.4, Sched. 9, s.5 (“ECA”);

ii. that the electronic document cannot be validated under s. 21.1 of the SLRA; and

iii. that the last will and testament of Robert Joseph Samide, executed on and dated July 26, 2013, is his valid and subsisting last will and testament, pursuant to which his estate is to be administered;

3. in the alternative, if the answer to question 1(a)(i) above is no, then:

i. can the 2024 electronic document be authenticated as the deceased’s own testamentary document pursuant to s.21.1 of the SLRA, notwithstanding that there is neither a wet-signature of the deceased, nor any handwriting of any witnesses, nor any handwriting of the deceased on the 2024 electronic document?

4. if the answer to question 1(c)(i) above is no, then an Order declaring that the 2013 will is the deceased’s valid and subsisting last will and testament, pursuant to which his estate is to be administered;

5. in the alternative, if the answer to question 1(c)(i) above is yes, and this Court declares that the 2024 electronic document is authentic, then:

i. does the 2024 electronic document set out the deliberate or fixed and final testamentary intentions of the deceased?

6. if the answer to question 1(e)(i) above is no, then an Order declaring that the 2013 will is the deceased’s valid and subsisting last will and testament, pursuant to which his estate is to be administered…

4Shantel Taylor brought an application against Jessica Samide et al. (Court file CV-24-3900). She seeks an order giving the Court’s directions and for an Order that the electronic document dated March 4, 2024, is the valid last will and testament of the deceased and other orders including one for dependant’s relief.

5Jessica Samide brought this motion in the context of her application seeking a ruling on the validity of the 2024 electronic document.

6Shantel Taylor takes the position that Jessica Samide’s motion is properly characterized as a motion for summary judgment, which is not permitted under 20.01 of the Rules of Civil Procedure and the two applications should be consolidated and converted into an action. Nevertheless, she has responded to the motion respecting the applicability of s. 21.1 of the SLRA to an electronic will but seems to suggest the issue of whether the will expresses the deceased’s final intention requires a trial.

7In my view, Shantel Taylor’s contention is answered by the order of Justice Moser dated September 26, 2025. She framed the issue for determination at the hearing of the motion as follows:

The matter is being adjourned for a Special Appointment on December 31, 2025. This is for both the Motion for Directions being brought by the Respondent Ms. Taylor and the Motion of the Applicant: Is the Electronic Document Entitled “This is the Last Will & Testament of me, Robert Joseph Samide” dated Mar. 4 2024 (The “2024 Draft Electronic Will”), the valid and subsisting Last Will and Testament of Robert Joseph Samide (“the deceased”), pursuant to s. 21.1 of the SLRA?

This will be a 2 hour Special Appointment. A Timetable is also set out in this Order.

The motion set for Oct. 3, 2025 is to be adjourned to this date (Dec 31, 2025).

8It is clear from Justice Moser’s order that the Court is being asked to rule on a motion to determine whether s. 21.1 of the SLRA can validate a will that exists only in an electronic form, and whether it is an expression of the testator’s fixed and final intention. Both questions require consideration in order to determine whether the electronic will is both valid and subsisting. Contrary to Shantel Taylor’s submission, it is not a motion for summary judgment.

9To the extent any issues remain as a result of the decision on these motions, they can be dealt with by giving directions.

The Facts

10For ease of reference, the parties are identified by their first names. The facts are straightforward. Robert died unexpectedly in July 2024 in a kayaking accident. Robert was survived by his children, Jessica, Nicole and Christopher. He was also survived by his domestic partner Shantel and her three sons, Van, Cal and Finn.

11In July 2013, Robert signed a last will and testament that left his entire estate to his three children. The validity of this first will is not disputed. It was a paper document that was duly signed and witnessed.

12After Robert’s death, two versions of a second document, dated March 4 and 5, 2024, were discovered on his computer. They appeared to be Robert’s testamentary expression that left his estate to his partner Shantel with certain bequests to his children and Shantel’s sons. They were never printed or signed by Robert. Nobody subscribed their signature as a witness. The only material difference between the two March documents (collectively “the second will”) is the list of Robert’s assets, which are more particularly specified, and the detail of certain bequests.

13Both the first and second wills appear to have been prepared using forms taken from a will kit. Kits are available to purchase and contain preprinted forms with blank spaces left to be completed by the testator. The forms used by Robert bear the words “Self-Counsel Press-01-02” in the lower right corner. Self-Counsel Press is the purveyor of will kits and other legal documents that can be completed without the necessity of professional legal assistance.

14Both wills bear the title “This is the Last Will and Testament” with spaces for the insertion of the testator’s name, address and the date. They contain a revocation provision and clauses for the appointment of executors, the payment of debts and the distribution of assets. Space is provided for the testator’s signature and for that of two witnesses at the end of the document.

15The first will bears Robert’s signature and those of two witnesses. The second will is unsigned and unwitnessed.

The Parties’ Positions

16Jessica submits that the second will is not valid because it lacks the necessary formalities and, as a wholly electronic document, it cannot be saved by s. 21.1 of the SLRA. She submits in the alternative, that if the second will can be validated, it is not Robert’s fixed and final expression of his testamentary wishes.

17Shantel takes the opposite position. She submits that the second will can be validated by s. 21.1 of the SLRA and it is a final and fixed expression of Robert’s testamentary intention.

18For the reasons that follow, I find that the second will is not valid as an effective testamentary disposition by the deceased. It cannot be validated pursuant to s. 21.1 of the SLRA because of the combined effect of this section and s. 31(1) of the ECA. Shortly put, an electronic document cannot be a will. Neither is it a fixed and final expression of Robert’s wishes.

The Statutory Provisions

19The SLRA sets out the requirements for a valid will as follows:

3 A will is valid only when it is in writing.

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 the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

20Section 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.

No Electronic Wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.

21Section 21.1 is a curative provision, intended to relieve against the potentially harsh consequences of a failure to comply with the strict formal requirements set out in s. 4 of the SLRA and reproduced above.

22In George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4^th) 273 (Man. C.A.) the Court considered s. 23 of Manitoba’s Wills Act, C.C.S.M. c. W150, a provision similar to s. 21.1. The Court observed that “the purpose of remedial provisions is to overcome the hardship and injustice – the consequences of the triumph of form over content – which have often followed the literal application of the formal requirements found in will statutes”.

23As already noted, s. 21.1(2) provides that s. 21.1(1) is subject to s. 31 of the ECA. The ECA creates a set of Functional Equivalency Rules. It provides as follows:

Legal recognition of electronic information and documents

4 Information or a document to which this Act applies is not invalid or unenforceable by reason only of being in electronic form.

Legal requirement that information or document be in writing

5 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.

Legal requirement to provide information or document in writing

6 (1) A legal requirement that a person provide information or a document in writing to another person is satisfied by the provision of the information or document in an electronic form that is,

(a) accessible by the other person so as to be usable for subsequent reference; and

(b) capable of being retained by the other person.

24Section 31 provides:

Documents to which Act does not apply

31 (1) This Act does not apply to the following documents:

1. Wills and codicils.

2. Trusts created by wills or codicils.

3. Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.

4. Repealed: 2013, c. 2, Sched. 5, s. 2.

5. Negotiable instruments.

6. Documents that are prescribed or belong to a prescribed class.

25The term electronic is defined in s. 1(1) of the ECA 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”. There is no question that the second will found on Robert’s computer is an electronic document.

26Given the interaction between the SLRA and the ECA, Jessica submits that the curative power contained in s. 21.1 of the SLRA is not available to regularize, validate or make Robert’s second will legally operative.

27Caselaw considering the interplay between s. 21.1 and s. 31 of the ECA is emerging and as of this writing, there are two decisions of the Ontario Superior Court of Justice that squarely confront the issue. They come to opposite conclusions. The first is the decision of Sanfilippo J. in Madhani v. Fast, 2025 ONSC 4100. He determined that s. 21.1 of the SLRA cannot save a testamentary document that exists only in electronic form (at paras. 44-46).

28While my decision in this case was under reserve, Justice Corthorn released her decision in Gebramariam v. Menghesha, 2026 ONSC 545. She came to the opposite conclusion. She held that the SLRA and ECA, when read together, do not prohibit the reliance on an electronic document in support of a s. 21.1 application and its validation as an effective will (at para. 45).

29In the circumstances, I invited counsel to submit supplementary submissions in writing, which I received and reviewed. The parties’ positions were unchanged.

The Case Law

30Turning first to the decision of Sanfilippo J. in Madhani v. Fast, supra, Jamshed Mavalwala died on November 10, 2023 at the age of 90. He was divorced and survived by two adult children, five siblings and a number of nieces and nephews. The husband of one of his nieces was the applicant. Jamshed executed a will prepared in November 2021 with the assistance of a solicitor. Its validity was not challenged. In December 2022, he retained a lawyer to prepare an updated will that contained different testamentary dispositions than the 2021 will.

31Jamshed’s lawyer prepared a new draft will that reflected the written instructions he provided and as discussed during a teleconference between them. The draft will was sent to Jamshed by regular mail. He and the lawyer met to discuss the will and he requested some revisions. A second amended draft was forwarded by email. Some further details were requested and a third and final draft was sent to Jamshed by email.

32An appointment was arranged for him to attend the lawyer’s office to execute the new will. Unfortunately, he died on the morning on which the appointment had been scheduled. The applicant, who was the executor under both the 2021 and 2022 wills, sought a determination of whether the 2023 draft will was valid and effective as a testamentary document pursuant to s. 21.1 of the SLRA. If it was, the 2021 will would have been revoked. The final draft will only existed in electronic form.

33All the potential beneficiaries under both wills were served with the application material and were on notice of the hearing of the application. None delivered responding material and no one appeared on their behalf at the hearing. As a result, the application was unopposed.

34Nevertheless, Justice Sanfilippo analyzed the record to determine whether the requirements of s. 21.1 of the SLRA were satisfied, consistent with the direction given by the Court of Appeal in Hejno v. Hejno, 2025 ONCA 249. Hejno did not involve an electronic will. Rather, the decision focused on whether the will being propounded was a true expression of the deceased’s final wishes. As in Madhani, the application was unopposed. The Court instructed that “Courts must ensure that documents validated under s. 21.1 of the SLRA truly express the testator’s wishes, and the lack of opposition did not remove the need to decide the application according to the law and the evidence …”

35Justice Sanfilippo began by summarizing the foundational principles that guide the Court’s analysis, drawing from three British Columbia decisions: Estate of Young, 2015 BCSC 182; Hadley Estate (Re), 2017 BCCA 311; and Gibb Estate (Re), 2021 BCSC 2461. Those principles are quoted from his decision 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, supra.

(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.

36His Honour then reviewed the limited caselaw that has touched on s. 21.1 since it came into force on January 1, 2022, including Cruz v. Public Guardian & Trustee, 2023 ONSC 3629; Kertesz v. Kertesz, 2023 ONSC 7055; Vojska v. Ostrowski, 2023 ONSC 3894; Marsden v. Hunt et al., 2024 ONSC 1711; R: O’Neill Estate, 2024 ONSC 2228; Groskopf v. Rogers, 2023 ONSC 5312, 2023ONSC 5312; Salmon v. Rombough, 2024 ONSC 1186; McKinley v. Currie et al., 2025 ONSC 3471; Estate of Harold Franklin Campbell, 2023 ONSC 4315.

37He concluded this portion of his analysis, observing that the “survey of recent case law shows a uniform and consistent application of the principles summarized above … and demonstrates that the analysis under s. 21.1 is markedly fact specific” (para. 38). Notably, none of the cases he reviewed in this section of the decision involved a purely electronic testamentary document.

38Justice Sanfilippo then examined the authenticity of the final draft will. He noted that it existed in electronic form only. He referred to two decisions of Justice Myers, neither of which required a direct analysis or determination of the interplay between the SLRA and the ECA, but were nonetheless of assistance to his reasoning.

39Justice Sanfilippo concluded that the 2023 document could not be declared a valid will. The essence of his decision is found at paras. 44-46:

44The 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.

45The 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.

46Here, the 2023 Draft Will existed only as an electronic document stored in Word document format in [the solicitor’s] computer’s directory and as provided to [the testator] 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.

40Because of their significance to his reasoning, the references in Allison and White are reproduced here.

41In White v. White, supra, Justice Myers commented at para. 32:

32The 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.

42In an accompanying footnote Myers J. wrote:

6Counsel did not discuss the effect of s. 21.1 (2) or s. 31 of the Electronic Commerce Act, 2000, S.O. 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.

43In Allison v. McBride, supra, Justice Myers summarized the caselaw to that point respecting the operation of s. 21.1 and observed in footnote 2 as follows:

2Subsection 21.1 (2) of the SLRA provides that s. 21.1 is subject to s. 31 (1) of the Electronic Commerce Act, 2000, S.O. 2000, Chapter 17. Generally speaking, the Electronic Commerce Act, 2000 provides for recognition of electronic documents and electronic signatures in Ontario. But clause 31 (1)1 of the statute specifically exempts its application to wills and codicils. The specific adoption of that clause into s. 21.1 of the SLRA presumably therefore is intended to mean that the “document or writing” to which s. 21.1 may apply must be in physical or hard copy form rather than just a digital document on someone’s computer. I do not know whether this would have undermined the result in Grattan or perhaps a different basis may have existed to find the document in that case satisfied s. 21.1.

44Justice Sanfilippo cited both decisions in support of his conclusions at para. 45. He then moved on to a consideration of whether the will reflected a fixed and final expression of testamentary disposition and after reviewing the evidence, he concluded that it did not.

45As already mentioned, following the release of the Madhani decision, Justice Corthorn released her decision, which came to the opposite conclusion.

46The facts in Gebremariam are as follows. Nabute Ghebrehiwet died on January 27, 2022. He was survived by his mother, the respondent Letekidan and six siblings, including the applicant, his sister Hanna.

47The genesis of the dispute was an email Nabute apparently sent to several recipients. The re line read “Please be my witnesses”. There was no substantive content in the email. It attached a single page document titled “Nabute’s Will”. The document was entirely typed, unwitnessed and lacked a signature. It made certain charitable gifts and the residue was left to Hanna. The document did not comply with the formalities required by ss. 4(2)(a)-(c) of the SLRA and existed in electronic form only.

48Hanna brought an application seeking an order validating the electronic document under s. 21.1 of the SLRA. Letekidan opposed the application on the basis that the SLRA does not permit the validation of an electronic will. Letekidan would inherit Nabute’s estate on the intestacy that would result if the electronic will could not be validated. Letekidan brought a motion seeking a determination of the issue of law.

49Justice Corthorn summarized the parties’ positions at paras. 9 and 10 of her decision as follows:

9Hanna distinguishes between the creation of a will and the validation of a will. Hanna acknowledges that a person applying for a validation order is not entitled to rely on the Functional Equivalency Rules under the ECA to bring the subject document or writing within the meaning of a “document or writing” for the purpose of s. 21.1 of the SLRA. Hanna’s position is that s. 21.1 does not, however, prohibit a person from applying to the court for an order that an electronic document is “valid and fully effective as the will of the deceased”. Stated another way, Hanna’s position is that s. 21.1 does not prohibit the court from validating an electronic document as the fully effective will of the deceased, if the document otherwise satisfies the requirements of s. 21.1.

10Letekidan is the moving party on the motion. Letekidan’s position is that modern principles of statutory interpretation, when applied to the SLRA and the ECA, support a rejection of the idea that an electronic document may be propounded as a testamentary document for the purpose of s. 21.1 of the SLRA. In addition, Letekidan relies on (a) the Hansard record of debates leading up to the enactment of s. 21.1; and (b) the marginal notes to the SLRA. Simply put, Letekidan’s position is that the court’s discretion, prescribed in s. 21.1, to validate an otherwise non-compliant document as a testamentary document does not extend to validation of an electronic or digital document.

50The issue of law was whether s. 21.1 of the SLRA and the ECA when read together prevent the validation of an electronic document as an effectual testamentary document.

51The Court’s disposition is succinctly expressed at para. 13:

13I conclude that (a) it is open to a person to apply, pursuant to s. 21.1 of the SLRA, for an order than an electronic document is valid and fully effective as a testamentary document, and (b) the court has the discretion to validate an electronic document as a fully effective testamentary document of the deceased, if the requirements of s. 21.1 are met.

52The motion judge then sets out her reasoning, beginning with a brief review of the principles of statutory interpretation. The important takeaway is that marginal notes in a statute are inserted for convenience of reference and do not form part of it. See the Legislature Act, 2006, S.O. 2006, c. 21, Sch. F, s. 70.

53The motion judge prefaces her review of the caselaw considering s. 21.1 of the SLRA by observing that the reported decision until then were of limited assistance because none were contested applications or motions.

54She reviews the Madhani decision noting the Court’s conclusions at paras. 44 and 45. She disagrees with them and “rewrites” para. 45 to reflect her conclusion:

31…When the SLRA and ECA are considered together, they provide as follows:

a) The legal requirements for testamentary documents, stipulated in the SLRA, cannot be satisfied by reliance on the Functional Equivalency Rules under the ECA;

b) On an application pursuant to s. 21.1(1) of the SLRA, the court is prohibited from relying on the use of the Functional Equivalency Rules, set out in ss. 4-12 of the ECA, as a factor to support an order validating a document or writing as a fully effective testamentary document. There must be other evidence to support validation of the document or writing as a fully effective testamentary document; and

c) There is no prohibition against reliance on an electronic document as “a document or writing” for the purpose of s. 21.1(1) of the SLRA. Nor is the court prohibited from validating an electronic document as a fully effective testamentary document, if the requirements of s. 21.1 are met.

55She explains her reasoning as follows:

• the SLRA does not define “document” or “writing” which are the words used in s. 21.1;

• the ECA sets out a series of Functional Equivalency Rules which speak to the creation and not the validation of electronic documents;

• the Rules facilitate the creation of documents that would otherwise be invalid and unenforceable because they do not meet prescribed legal requirements;

• the ECA defines “electronic” but not “electronic document”;

• s. 26(1) of the ECA does not limit any provision that expressly authorizes, prohibits or regulates the use of electronic documents;

• there is nothing in s. 21.1 of the SLRA that expressly prohibits the reliance on an electronic document for an application under that section or the validation of an electronic document as a testamentary document if the requirements of s. 21.1 are met;

• potential consequences for failing to meet legal requirements are not addressed in the ECA in the context of validation.

56The motion judge continues at paras. 43 and 44:

43Turning to the SLRA, s. 21.1 sets out the consequences imposed where a document or writing propounded as a testamentary document does not satisfy the legal requirements stipulated in the statute. The ‘legal requirements’ include those (a) in s. 3, that a will “must be in writing”; (b) in s. 4(2) regarding the execution of a testamentary document; and (c) in s. 6, that a holographic will must be signed by the testator. I pause to note that the term “in writing”, as it appears in s. 3, is not defined in the statute.

44The consequences imposed where the legal requirements stipulated in the SLRA are not satisfied include that the document or writing will only be valid and fully effective as a testamentary document if the requirements of s. 21.1 are met.

57In summary, she writes:

45I conclude that the SLRA and the ECA, when read together, do not create a prohibition, express or implied, against (a) the reliance on an electronic document in support of an application pursuant to s. 21.1 of the SLRA, or (b) the validation of an electronic document as fully effective testamentary document, if the requirements of s. 21.1 are met. Those requirements are discussed below in the final section of my analysis.

58She returns then to the Madhani decision and the two footnoted decisions of Myers J. to which Justice Sanfilippo made reference. She suggests that those two decisions do not support his conclusion. See paras. 64, 68 and 76. She reviews other reported decisions under s. 21.1 of the SLRA in which a document or writing was validated. None had the issue of the validity of an electronic will squarely before it. Only one, Marsden v. Hunt et al., supra, made passing reference to electronic documents noting at para. 5 that s. 21.1(1) does not apply to electronic wills. She concludes that the comments in Allison, White and Marsden are obiter.

59The final portion of the court’s analysis is set out at paras. 95 and following, which is a discussion of s. 21.1 of the SLRA and the exercise of the court’s discretion to validate an otherwise imperfectly prepared or executed will, a provision that “represents a change to pragmatism in the administration of estates in this province”: Salmon v. Rombough, supra, at para. 6. She prefaces her reasoning about limits to that pragmatism with the following observations:

99First, the modern reality includes that individuals rely on technology for many facets of their lives. Second, from grade school through high school, children rely on and are being educated with the use of technology in the classroom. Third, fewer and fewer children are being taught cursive writing. Handwritten notes or letters are increasingly the subject of nostalgic reflection.

100Returning to the first factor listed in the preceding paragraph, I consider the extent to which modern society functions through reliance on technology – specifically, that individuals with physical challenges are now able to rely on technology as a method of communication. An individual in that circumstance might choose to (a) rely on technology to create an electronic document, intended as a testamentary document; and (b) store the document on a personal device. The document created and stored in that manner could be described as a modern-day version of a holographic will.

60It is difficult to quarrel with those observations although I do not necessarily agree that an electronic will is the contemporary version of a holograph will. An electronic document does not have the evidentiary benefit of the testator’s idiosyncratic handwriting as an aid to determining authenticity. The motion judge does acknowledge, however, the practical evidentiary challenges to authenticating an electronic will. Nevertheless, she concludes that is no reason to prohibit its validation with the support of a proper evidentiary record.

61She concludes her analysis as follows:

114Absent a prohibition against the reliance on an electronic document for the purpose of s. 21.1 of the SLRA, the existence, nature, and extent of the challenges inherent in establishing (a) the authenticity of an electronic document; or (b) that the document represents the testator’s deliberate or fixed and final expression of intention are relevant to the burden of proof under s. 21.1. The existence of such evidentiary challenges does not, however, preclude reliance on an electronic document for the purpose of s. 21.1.

115Absent a prohibition against validation of an electronic document as a fully effective testamentary document, the existence of such evidentiary challenges is not relevant to the extent of the court’s discretion to validate a document or writing as a fully effective testamentary document.

62She expresses support for Justice Sanfilippo’s second step of the analysis and his conclusion about whether the electronic document was proved to be the deceased’s fixed and final expression of testamentary intent. However, on the motion before her, the court was not asked to rule on that issue.

Analysis

63I respectfully disagree with Justice Corthorn’s decision and agree with that of Justice Sanfilippo. I have concluded that as a result of the interplay between s. 21.1 of the SLRA and ss. 4, 5 and 31(1) of the ECA, a testamentary document that exists only in electronic form cannot be validated pursuant to s. 21.1.

64The essence of the issue is one of statutory interpretation. Therefore, I remind myself of the approach to be taken by the court, by reference to Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27. It instructs that:

21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

27 It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).

65As already noted, s. 21.1 of the SLRA was enacted to relieve against the harsh consequence of non or imperfect compliance with the formalities required to make a valid will.

66For the sake of clarity, I reiterate the statutory provisions s. 21.1 of the SLRA provides:

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.

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.

67I 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.

68The ECA was enacted to facilitate electronic transactions by providing legal recognition for electronic documents and signatures by virtue of “Functional Equivalency Rules”.

69Sections 4 and 5 of the ECA provide that:

4. Information or a document to which this Act applies is not invalid or unenforceable by reason only of being in electronic form. (emphasis mine)

5. 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.

70If the ECA made no other provision, then I agree the validation process under s. 21.1 would be available by virtue of s. 4 of the ECA. The requirement in s. 4 of the SLRA that a will be in writing would be satisfied by s. 5 of the ECA. And the electronic document would not be invalid only because of its electronic form.

71However, s. 4 is subject to s. 31(1) which provides that:

31. (1) This Act does not apply to the following documents:

32. Wills and codicils.

72The combined effect of these sections is to exempt an electronic will from the operation of the Functional Equivalency Rules. In other words, an electronic will cannot be the functional equivalent of a hard copy document. As a result, I interpret that to mean that the court cannot validate an electronic will. To my mind, an interpretation to the opposite conclusion would render s. 21.1 (2) of the SLRA and s. 31 of the ECA meaningless.

73Accordingly, in this case, because Robert’s second will existed only in the electronic world, it cannot be validated pursuant to s. 21.1 of the SLRA.

Valid Testamentary Disposition

74In the event I am mistaken in my conclusion respecting whether an electronic will can be validated, I consider whether the second will is authentic and a fixed and final expression of Robert’s testamentary intent regarding the disposition of his property on death. I have concluded that while there is no issue respecting authenticity, the evidence falls short of proving that it is a fixed and final expression of intention.

75For the purposes of this hearing, Jessica acknowledges that the second will is authentic because it was created and preserved by Robert on his computer. The parties part company on the issue of intent.

76I return to the Madhani decision supra. Justice Sanfilippo notes that:

31… 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.

77He suggests a number of factors that assist in the analysis, including “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” (para. 33(e)). He notes that “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” (para. 33(f)).

78What then is the evidence respecting Robert’s intention? The second will exists only in electronic form. It was never printed. It is unsigned and unwitnessed, all in contrast to Robert’s 2013 will that was in printed form, duly executed and witnessed. Robert must have understood the customary formalities associated with the preparation of a will, given that he had prepared and signed his first will and had it properly witnessed.

79It is also relevant that Robert made changes, albeit reasonably minor, to the first draft of the second will which suggests to me that the document was a work in progress and susceptible to further refinement or amendment.

80It is significant that Robert did not sign the second will at any time between its creation and his untimely death, some four months later. Clearly, he had the opportunity to do so had he wished.

81Neither Shantel’s nor Van’s evidence assists. The most they can say is that Robert told them he intended to prepare a will and later told them that he had done so. The evidence simply falls short of demonstrating a fixed and final intention respecting Robert’s testamentary wishes.

Conclusion

82For these reasons, Jessica’s application is granted. Robert’s second will cannot be validated pursuant to s. 21.1 of the SLRA because it exists only in electronic form. In the alternative, it is not the fixed and final expression of Robert’s testamentary intentions.

83It follows that Shantel’s application pursuant to s. 21.1 of the SLRA is dismissed. However, her claim for dependent’s relief remains intact and outstanding, for which the Court’s directions may be required. It would be premature to provide direction without the benefit of submissions from counsel and draft proposed orders from both. It is possible, and I urge the parties to confer with a view to coming to an agreement. While I am prepared to provided directions if required, I wish to be clear that I am not seized of that aspect of the application.

84I will receive brief written submissions on costs not to exceed four pages plus Bills of Costs first from Jessica within 60 days of the release of these reasons and from Shantel 30 days thereafter.