Court File and Parties

CITATION: Gebremariam v. Menghesha, 2026 ONSC 545

COURT FILE NO.: CV-23-94097-ES

DATE: 2026/02/03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Hanna Gebremariam Applicant

– and –

Letekidan Menghesha, by her Litigation Guardian Almaz Gebremariam Respondent

COUNSEL:

Gib Van Ert and Dahlia Shuhaibar, for the Applicant

Valerie Akujobi, for the Respondent

HEARD: May 20, 2025 (by videoconference) and, thereafter, in writing

AMENDED RULING ON MOTION

The text of the original Ruling on Motion, dated January 28, 2026, was amended on February 3, 2026, and the description of the amendment is appended.

CORTHORN J.

Overview

1Nabute Ghebrehiwet, a longtime resident of Ottawa, Ontario, died on January 27, 2022, at age 61. He was survived by his mother and nine siblings. The applicant is one of Nabute’s siblings; the respondent is Nabute’s mother.¹

2At the heart of the motion now before the court is an attachment to an email. On the face of it, the email appears to have been sent by Nabute in March 2020. The subject line of the email is “Please be my witnesses”. The email was sent to (a) Hanna; (b) another of Nabute’s siblings; (c) the lawyer representing Nabute in personal injury litigation; and (d) the CBS Television program “Face the Nation”. Within the body of the email, it is directed to the attention of the host of that program, Margaret Brennan. There is otherwise no substantive content to the email.

3Attached to the email is a single-page document titled “Nabute’s Will” (“the Attachment”). In the Attachment, Nabute sets out that he is “[o]f sound mind”; that he leaves everything he owns to Hanna; the charities to be supported by Hanna from the inheritance; and the name of his banking institution. The Attachment concludes with the following line, typed entirely in the same font as the balance of the Attachment: “Signed: Nabute Ghebrehiwet”. Nothing in the Attachment is handwritten.

4The parties agree that the Attachment does not satisfy the requirements of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), including those stipulated in ss. 4(2)(a)-(c) regarding the execution of a will:

• Nabute’s signature does not appear in the attachment;
• Nabute did not make or acknowledge his signature in the presence of two or more witnesses; and
• No witnesses subscribed the Attachment in Nabute’s presence.

5The fact that a document does not comply with the requirements of s. 4(2) does not end the court’s consideration of the document as a potentially valid testamentary document. The SLRA includes the following validation provision:

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.

6The parties disagree as to whether it is open to Hanna to rely on the Attachment in support of her application, pursuant to s. 21.1 of the SLRA, for an order that the Attachment is “valid and fully effective” as Nabute’s will. The parties’ disagreement stems from the interplay between the SLRA and the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (“ECA”).

7Section 21.1 of the SLRA came into force on January 1, 2022.² As of that date, the ECA had been in force for approximately two decades.

8The ECA established a series of “Functional Equivalency Rules” to facilitate electronic commerce. The effect of those rules is that when a law requires something to be done “in writing” or to be “signed”, and the ECA applies, an electronic document or electronic signature, respectively, is deemed to satisfy the requirement. Subsection s. 31(1), item 1 stipulates that the ECA does not apply to wills and codicils.

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.³

11It is undisputed that unless the Attachment is declared by this court to be valid and fully effective as Nabute’s will, then Nabute died intestate. At the date of his death, Nabute did not have a spouse; he had no children. On an intestacy, Nabute’s estate (“the Estate”) would pass to Letekidan. The most valuable asset in the Estate, on a monetary basis, is a six-figure settlement of Nabute’s personal injury litigation. That settlement was negotiated in 2023, after Nabute’s death.

The Issue

12The following issue of law is determined on the motion: Is it 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? Stated another way, the issue of law is: When read together, do s. 21.1 of the SLRA and the ECA prohibit against the validation of an electronic document as fully effective as a testamentary document?

Disposition

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.

14The practical effect of my conclusions is that Hanna is entitled to continue her application, pursuant to s. 21.1 of the SLRA, for an order that the Attachment is valid and fully effective as Nabute’s will.

15Letekidan commenced a separate application related to the Estate.⁴ The outcome of the motion is relevant to both proceedings. A copy of this ruling shall be added to the court file for the related proceeding and shall have the same force and effect as if the motion were determined in that proceeding.

16Before beginning my analysis, I briefly review the principles of statutory interpretation applied to determine the issue on the motion.

The Modern Approach to Statutory Interpretation

17The Supreme Court of Canada has repeatedly cited the following passage, at times describing it as the “definitive formulation”, for the modern approach to statutory interpretation: “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.”⁵

18When considering that passage in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, Iaobucci J. emphasizes that “statutory interpretation cannot be founded on the wording of the statute alone.”

19With one of the parties before this court relying on the marginal note to s. 21.1(2) of the SLRA, it is important to understand that, pursuant to the Legislature Act, 2006, S.O. 2006, c. 21, Sch. F, s. 70, marginal notes “are inserted in an Act or regulation for convenience of reference only and do not form part of it.”

20In Imperial Oil Lt. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447, at para. 57, Lebel J. makes the following observation about marginal notes as a potential interpretive aid: “Although marginal notes are not entirely devoid of usefulness, their value is limited for a court that must address a serious problem of statutory interpretation. I would be loath to rely on one for that purpose and will return to the text of the statute itself, after considering some additional interpretive arguments raised by the litigants.”

21The Supreme Court of Canada recently addressed the role of marginal notes in statutory interpretation: R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374. At para. 88, Kasirer J. responded as follows to the Crown’s submission regarding interpretation of a section of the Criminal Code: “Neither can this Court ‘read in’ that interpretation, as the Crown suggested, by relying on the marginal notes accompanying the legislation and the presumption of constitutionality. To do so would strain the meaning beyond what the text can plausibly bear.”

22In determining the issue of law before this court, I apply the modern principles of statutory interpretation and am mindful of the limited role played by marginal notes in statutory interpretation.

Analysis

23A validation provision, such as s. 21.1 of the SLRA, “allows the court to save wills in appropriate circumstances”: see Albert H. Oosterhoff, Oosterhoff on Wills, 9th ed (Toronto: Thomson Reuters, 2021), at p. 337.

24As of the date of the hearing of the motion (a) s. 21.1 of the SLRA had been in force for slightly more than three years; and (b) there were approximately a dozen reported decisions related in some way to that section. Subsequent to the date of the hearing of the motion, counsel became aware of another reported decision regarding s. 21.1: Madhani v. Fast, 2025 ONSC 4100, 99 E.T.R. (4th) 111. The parties requested and were granted an opportunity to make written submissions on that decision. The additional written submissions were delivered in the fall of 2025.

25The reported decisions are of limited assistance on the motion before this court because none of them involve a contested application or motion for which the moving party relies on an electronic document for the purpose of s. 21.1. I start by considering the reported decisions involving, or in which reference is made to, reliance on an electronic document for the purpose of s. 21.1.

a) Decisions Involving or in Which Reference is Made to an Electronic Document

▪ Madhani v. Fast

26The decision in Madhani stems from an application regarding the potential validity of an electronic document as a will. Briefly, the issue determined is whether a 2023 draft will is valid and therefore, according to its terms, revokes an earlier will, the validity of which was not in dispute. The 2023 draft will was prepared by the deceased’s lawyer and had yet to be presented to the deceased, other than through email communication. The deceased had an appointment to attend at his lawyer’s office to sign the 2023 draft will; he died on the morning of the date for which the appointment was scheduled.

27In both the 2023 draft will and the earlier will, the same individual is appointed as the Estate Trustee. The Estate Trustee brought an application for directions pursuant to rr. 75.01 and 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In addition, the Estate Trustee requested a determination, pursuant to s. 21.1(1) of the SLRA, as to whether the 2023 draft will is valid and fully effective as the deceased’s will.

28All the potential beneficiaries under both documents were served with the requisite materials and were on notice of the hearing of the application. None of the respondents delivered responding materials; no one appeared on their behalf on the return of the application. The application was unopposed.

29Sanfilippo J. understood that, despite the fact the application was unopposed, the court was obligated to ensure that the requirements of s. 21.1 were satisfied on the evidence: at para. 40, citing Hejno v. Hejno, 2025 ONCA 249, at paras. 2, 9. Those requirements include, for example, that the subject document sets out the testamentary intentions of the deceased: Madhani, at para. 40, citing Hejno, at para. 2.

30In Madhani, at para. 46, Sanfilippo J. concludes that “an electronic document cannot be a will.” The crux of Sanfilippo J.’s analysis of the interplay between the SLRA and the ECA is set out in paras. 44 and 45, both of which are reproduced below:

[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 trust 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.

31I would replace the second sentence of para. 45 in Madhani with the following content:

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.

32I reach the conclusions set out in para. 31, above, for the following reasons.

- The SLRA does not Include a Definition of “Document” or “Writing”

33The SLRA does not include a definition of either “document” and “writing” (i.e., the words used in s. 21.1).

- The Functional Equivalency Rules in the ECA

34The heading “Functional Equivalency Rules” precedes ss. 4-12 of the ECA. Those rules begin in s. 4, with the following stipulation: “Information or a document to which this Act applies is not invalid or unenforceable by reason only of being in electronic form”. The balance of the Functional Equivalency Rules (ss. 5-12) address ‘satisfaction’ of legal requirements – for example, that a document be in writing (s. 5) or that a document be signed (s. 11). The phrase “is satisfied by” appears repeatedly in ss. 5-12.

35The Functional Equivalency Rules (a) are framed in the context of the creation, not the validation, of electronic documents; and (b) facilitate the creation of documents that would otherwise be invalid and unenforceable because they do not meet legal requirements prescribed in other statutes and elsewhere. That framing and purpose are consistent with other sections of the ECA: for example, the definition section (s. 1); the preservation of other laws about electronic documents (s. 26); and the identification of types of documents to which the ECA does not apply (s. 31(1)).

- The ECA Definition of “Electronic”

36The definition section of the ECA does not include a definition of the term “electronic document”. That section does, however, include a definition of “electronic”.

37In s. 1(1), “electronic” is defined to include “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; (‘électronique’, ‘par voie électronique’).”

- The ECA Preserves Other Laws About Electronic Documents

38Subsection 26(1) of the ECA stipulates that “[n]othing in this Act limits the operation of any provision of law that expressly authorizes, prohibits or regulates the use of electronic information or electronic documents.”

39I refer s. 26(1) of the ECA simply to highlight that there is nothing in the language of s. 21.1 of the SLRA capable of being interpreted as “expressly” prohibiting either (a) reliance on an electronic document for the purpose of an application under that section, or (b) the validation of an electronic document as fully effective as a testamentary document of the deceased, if the requirements of the section are met.

- The Types of Documents to Which the ECA Does Not Apply

40The types of documents to which the ECA does not apply include wills and codicils; trusts created by wills or codicils; powers of attorney related to an individual’s financial affairs or personal care; and negotiable instruments (ss. 31(1), items 1-3, 5). There is a common element to each of those types of documents. Each of them relates to an individual’s agency in directing their personal and financial affairs – from making a will to writing a cheque. It is understandable that the legislature would exclude those documents from the ECA.

- The Consequences of Failing to Satisfy Legal Requirements

41Although the ECA does not apply to wills and codicils, it is helpful to review the definition in the ECA of the term “legal requirement”. Subsection 1(2) of the ECA sets out what is described in the heading to that subsection as the “Extended meaning of ‘legal requirement’”:

(2) In this Act, a reference to a legal requirement includes a reference to a provision of law,

(a) that imposes consequences if writing is not used or a form is not used, a document is not signed or an original document is not provided or retained; or

(b) by virtue of which the use of writing, the presence of a signature or the provision or retention of an original document leads to a special permission or other result.

42I highlight the phrase “that imposes consequences if writing is not used”, in s. 1(2)(a) quoted above. Through reliance on the Functional Equivalency Rules and other portions of the ECA, consequences that would otherwise be imposed on individuals, corporations, and public bodies are avoided. Once again, the ECA is framed in the context of the creation of documents – specifically, the creation of documents upon which an individual, a corporation, or a public body would not otherwise be entitled to rely. Potential consequences for failing to meet legal requirements are not addressed in the ECA in the context of ‘validation’.

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.

- Summary – The SLRA and the ECA

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.

46I return to Sanfilippo J.’s reliance on the decisions in Allison and White, as support for his conclusion in Madhani.

- The Decisions in Allison v. McBride and White v. White

47I begin with para. 45 of Madhani, reproducing that paragraph, again, below for ease of reference:

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.

48I respectfully disagree with the conclusion reached by Sanfilippo J. in the second sentence of para. 45. Both decisions cited in that paragraph are decisions of Myers J. Neither of those decisions supports the existence of a prohibition against either the reliance on or the validation of an electronic document for the purpose of s. 21.1(1) of the SLRA.

49In para. 45 of Madhani, the decisions of Myers J. are listed in reverse chronological order. I will review the decisions in the order in which they were published.

▪ White v. White (2023)

50The issue before Myers J. was not whether any, or even a specific, electronic document may be found to be “valid and fully effective as the deceased’s will” pursuant to s. 21.1 of the SLRA. This issue determined in White is “whether a possible beneficiary is entitled to compel disclosure of documents in the possession of a lawyer for a deceased person to look for evidence to see if any paper or writing held by the lawyer might be sufficiently close to a will to be recognized as a will under the new authority under s. 21.1 of the SLRA”: at para. 6 (emphasis in the original). Myers J. granted the documentary disclosure order requested.

51The description of s. 21.1 as “the new authority” is not surprising. As of the date of the decision in White, that section had been in force for approximately two years.

52In Madhani, Sanfilippo J. relies on para. 32 of the decision in White. I respectfully disagree with the reliance on para. 32 in isolation of and without reference to either para. 33 or Footnote 6. For context, paras. 31-33 and Footnote 6 are reproduced below:

[31] [Section 21.1 of the SLRA] allows the court to recognize as a valid will a document that, “sets out the testamentary intentions of a deceased.”

[32] The 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.⁶

[33] No one knows with certainty whether there are any limits on the types of documents that might be recognized as a will or what limits may apply.

[Footnote 6]

Counsel did not discuss the effect of s. 21.1(2) or s. 31 of the [ECA]. 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 it if 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.

53With the issue of whether or not an electronic file can be “a document or writing” for the purpose of s. 21.1 of the SLRA not before Myers J. on the motion, I find that the conclusion expressed in para. 32 is obiter.

54Even when para. 32 is considered together with the contents of Footnote 6, the decision in White does not constitute a sufficient analysis upon which to base a conclusion that there exists a prohibition against the reliance on or the validation of an electronic document, as a fully effective testamentary document, if the requirements of s. 21.1 are met.

55In White, Myers J. queries what s. 21.1 is intended to mean. Myers J. highlights that, two years after that section came into force, there remained uncertainty as to what limits exist as to the types of documents that can be validated as wills: at para. 33. When the conclusion expressed in para. 32 and the query raised in para. 33 are read together, they are not determinative of the issue on the motion before this court.

56For the purpose of the documentary disclosure motion, there was no document – electronic or otherwise – before Myers J. The applicant’s evidence was that a document existed, which enshrined the deceased person’s testamentary intentions: at paras. 28-9, 54. Myers J. concludes that if such a document exists then, like a will, it would not be subject to solicitor-client privilege: at para. 54.

57Myers J. then envisions how the matter might unfold if such a document exists. At para. 55, Myers J. emphasizes that the “limited exception to privilege would only allow for disclosure of the single draft document that is said to be the draft will to be recognized under s. 21.1.” The limited exception to solicitor-client privilege would “not necessarily allow for production of the lawyer’s notes”: at para. 55.

58In para. 56, Myers J. refers back to para. 32 and Footnote 6. In that paragraph, Myers J. says “[m]oreover, as alluded to above, the inapplicability of the [ECA] would not support the release of counsel’s electronic files (if any).” That statement, even when considered together with para. 32 and Footnote 6, is not determinative of the issue on the motion before this court.

59I distinguish the facts in White from the scenario in the proceedings before this court. The document before the court on Hanna’s application is the Attachment – an attachment to an email. Without making any finding, I note that, on the face of the email and the Attachment, both documents appear to have been prepared by Nabute. In that regard, both documents are distinguishable from the document in White to potentially be relied on for the purpose of an application pursuant to s. 21.1; that document was prepared by a lawyer.

60In summary, and relying on the language of Myers J. in para. 33 of White, an electronic document stored on a lawyer’s computer is a different “type of document” from an attachment to an email, specifically where both documents appear, on their face, to have been prepared by the testator.

61In determining the documentary disclosure motion, Myers J. considers what might be found on the lawyer’s computer and the use that might be made of the document on an application pursuant to s. 21.1. Myers J. summarizes the applicant’s unchallenged evidence about his knowledge of the existence of a written will document and the basis for that knowledge: at para. 28. Thereafter, Myers J. emphasizes that he makes “no finding of what might happen if the will is only resident on counsel’s computer system despite something having been printed out for [the lawyer] to take to the hospital” (i.e., for a meeting with the deceased person that did not proceed as scheduled): at para. 49.

62I conclude my review of the decision in White by emphasizing Myers J.’s recognition of the limited scope of his documentary disclosure ruling. At para. 56, Myers J. highlights that “[w]hether the e-files or notes of counsel could be found to be a will under s. 21.1 is for another case or at least for another day.” In para. 62, Myers J. cautions against over-interpretation of his ruling. That paragraph is reproduced below in its entirety:

I am not to be taken in this decision to be widening at all the scope of applicability of s. 21.1. While I am aware of cases from Western Canada in which lawyers’ notes have been held to satisfy statutes like s. 21.1 of the SLRA, I remain to be convinced. If broader uses of s. 21.1 are sought later, it will be for those parties and courts to consider whether the Legislature intended such an approach. Section 21.1 speaks of recognizing documents that were not properly executed or made under the SLRA. Whether this applies beyond wrongly executed wills or unexecuted wills remains to be seen.

63On her application, Hanna relies on the ‘broader use’ of s. 21.1 contemplated by Myers J. in the passage quoted immediately above.

64For those reasons, the decision in White does not support the conclusion reached by Sanfilippo J. in Madhani.

▪ Allison v. McBride (2025)

65The motion before Myers J. was for an order requiring the deceased’s lawyer to produce their solicitor-client file; it was not a will challenge: Allison, at para. 3. Myers J. describes the purpose of the motion as the moving party hoping to find “evidence of a document (or a series of documents) expressing the deceased person’s fixed and final testamentary intention to a sufficient degree to be recognized as a will under s. 21.1 of the [SLRA]”: at para. 3.

66An issue on the motion was whether the ‘wills exception’ to solicitor-client privilege applied in the circumstances: at para. 8. Myers J. describes the ‘wills exception’, as follows, at para. 5: “[W]here efforts are made to review the deceased person’s lawyers’ files to ascertain the client’s true intentions as expressed in his or her will or testamentary documents, the quest is excepted from lawyer client privilege.”

67Given the nature of the proceeding and of the motion before him, at para. 8, Myers J. describes the task at hand as determining whether he could fit

the rationale of the “wills exception” to a case where a possible beneficiary wants to invade the confidential sphere of a deceased’s relationship with his or her lawyer to try to ascertain whether the deceased might have left enough documentary or written breadcrumbs to line a path of recognition of a document ‘as valid and effective as the will of the deceased’ under s. 21.1 of the SLRA.

68Myers J. concludes that he could not do so: at para. 8.

69The portion of the decision in Allison upon which Sanfilippo J. relies is Footnote 2. That footnote reference appears immediately following a summary of an unreported decision (“the Grattan summary”). For the following reasons, I find that (a) the footnote includes obiter remarks, and (b) the substantive contents of the footnote do not support the conclusion reached in Madhani. I will first review the summary of the unreported decision and then Footnote 2.

70At para. 10, Myers J. observes that s. 21.1 of the SLRA is “a recently enacted provision”. In the same paragraph, Myers J. addresses, as follows, the judicial treatment that s. 21.1 had received to the date of his decision: “While the limits of the reach of s. 21.1 have yet to be set definitely, case law has generally found that to qualify for recognition under s. 21.1, a document must set out the testamentary intention of the deceased in a ‘fixed’ and a ‘final’ way like a will.”

71Quoting extensively from the non-party lawyer’s factum, at para. 11, Myers J. includes summaries of ten decisions in which a document is validated under s. 21.1. Footnote 2 is appended to the Grattan summary. I reproduce that summary here:

(j) Grattan v. Grattan, unreported: the deceased was sent a draft Will digitally by her lawyer. She sent the draft back in the same digital format with alterations, such as spelling corrections. The lawyer promised to make the necessary corrections. The deceased failed to schedule a signing appointment before her death 15 days later. (Notably, the court did not refer to section 21.1(2) of the SLRA in its decision; that section would appear to have prohibited the validation of a digital-only document.)²

72When the introduction to the summaries of all the decisions is read together with the Grattan summary, it appears that the court in Grattan validated the document upon which the moving party relied as the deceased’s will.

73The query raised in the bracketed portion of the Grattan summary is quoted directly from the non-party lawyer’s factum; it is not a query raised by Myers J. In Footnote 2, Myers J. considers the query raised by the non-party lawyer. Footnote 2 is reproduced below, in its entirety:

Subsection 21.2(2) of the SLRA provides that s. 21.1 is subject to s. 31(1) of the [ECA] provides for recognition of electronic documents and electronic signatures in Ontario. But clause 31(1) [item 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.

74With respect for both Myers J. and Sanfilippo J., the former’s obiter remarks about what s. 21.1 of the SLRA is “presumably […] intended to mean” do not constitute a sufficient analysis upon which to base a conclusion that reliance on an electronic document in support of an application under that section is prohibited.

75In Footnote 2, Myers J. expresses uncertainty as to what s. 21.1 of the SLRA is intended to mean. The footnote concludes with Myers J. querying whether a basis, other than one relied on by the application judge in Grattan, might have existed to support validation of the draft will in digital form as the fully effective will of the deceased.

76For those reasons, the decision in Allison does not support the conclusion reached by Sanfilippo J. in Madhani.

77The decisions in Madhani, White, and Allison each include summaries of reported decisions in which a document or writing is validated, pursuant to s. 21.1, as a fully effective testamentary document. Are those decisions of assistance in determining the issue on the motion before this court?

b) Other Reported Decisions Under s. 21.1 of the [SLRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s26/latest/rso-1990-c-s26.html)

78In December 2023, when deciding the issue before him in White, Myers J. observes that, as of that month, he was unaware of any decision, under s. 21.1 of the SLRA “that goes beyond fixing or ignoring execution errors on documents that, if properly signed, would have been wills”: at para. 38. Myers J. cites four decisions, each of which is either cited or discussed in the balance of this section of the ruling: see White, at paras. 34-37.

79By May 2025, when Myers J. determines the documentary disclosure motion in Allison, there are at least ten decisions under s. 21.1: see para. 71, above. In Madhani, decided in July 2025, Sanfilippo J. cites a similar number of decisions under s. 21.1: see paras. 34-37.

80In the six decisions listed immediately below, the court exercises its discretion, pursuant to s. 21.1, to validate a document or writing as a fully effective testamentary document where the document or writing is signed by the deceased, but the requirements of s. 4(2) regarding the number of witnesses and/or their respective subscription of the document are not met:

a) Cruz v. Public Guardian and Trustee, 2023 ONSC 3629;

b) Vojska v. Ostrowski, 2023 ONSC 3894, 87 E.T.R. (4th) 326;

c) Groskopf v. Rogers et al., 2023 ONSC 5312, 90 E.T.R. (4th) 26;

d) Salmon v. Rombough, 2024 ONSC 1186;

e) Marsden v. Hunt et al., 2024 ONSC 1711; and

f) Re: O'Neill Estate, 2024 ONSC 2228, 97 E.T.R. (4th) 311.⁶

81As noted by Leroy J. in Salmon, at para. 11, the analysis on an application pursuant to s. 21.1 is “intensely fact-driven”. It is not surprising, then, that the above-listed decisions involving a document signed by the deceased are of minimal assistance on the motion before this court.

82In Marsden, the document before the court on an application pursuant to s. 21.1 was a will, which was signed by the testator, whose signature had been witnessed by two people, and for which the signature of one of the witnesses was missing. Subsection 21.1(1) is reproduced in its entirety at para. 4. Immediately below the reproduction of that subsection, a single-sentence is included at para. 5 to address s. 21.1(2). Faieta J. therein says, “Subsection 21.1(1) does not apply to electronic documents, nor does it apply where the deceased died before January 1, 2022: See SLRA, ss. 21.1(2), (3).”

83Given the nature of the document before the court on the application in Marsden, the conclusion expressed in Marsden, at para. 5 is obiter as it relates to s. 21.1 and electronic documents.

84In two other decisions reviewed in one or more of Madhani, White, and Allison, the court validates a document or writing as a fully effective testamentary document where, without the involvement of a lawyer, the deceased prepared but failed to sign a handwritten document: Kertesz v. Kertesz, 2023 ONSC 7055; and Allan et al. v. Thunder Bay Regional et al., 2024 ONSC 3260, 96 E.T.R. (4th) 258. In Kertesz, the handwritten document was intended by the deceased as a will. In Allan, the handwritten document prepared by the deceased is a codicil to a will, the validity of which was not in dispute.

85I review those two decisions based on the chronological order in which they were published.

86The decision in Kertesz is a nine-paragraph endorsement of Myers J. The first paragraph of the endorsement begins with the following description of the document that is the subject of an application pursuant to s. 21.1: “The longer note written by Simon Kertesz before he passed away was plainly intended to be his will.” The note is unsigned: see para. 4.

87Myers J. considers the authenticity, chain of possession, and substantive content of the note: at paras. 1-3. In para. 4, Myers J. concludes that the matter is one in which it is “appropriate [to] exercise the authority set out in s. 21.1 of the SLRA to recognize the document as a valid will despite the lack of a signature.”

88In Allan, the applicants are two individuals who consent to be appointed as Estate Trustee and work together in the administration of the subject estate. The individual named as the sole Estate Trustee in the deceased’s will was unable to fulfil that role: at para. 6. In addition, the individual named as sole Estate Trustee in a handwritten codicil renounced that appointment: at para. 7.

89The issues in Allan are (a) whether the unsigned, handwritten codicil is a valid testamentary document; and (b) whether the respondent, Thunder Bay Regional Health Sciences Foundation (“the Foundation”) is the residuary beneficiary of the estate (i.e., pursuant to the will and, if valid, the codicil).

90All the individuals who have an interest in the will and the codicil, including the Foundation, were served with the notice of application. The Foundation is the only respondent represented at the hearing of the application; no oral submissions were made on behalf of the Foundation.

91H.M. Pierce J. (a) concludes that the codicil is “a valid and fully effective testamentary document” (at para. 13); and (b) declares that the Foundation is the residuary beneficiary pursuant to the will and codicil (at para. 32).

92The issue of the validity of the unsigned, handwritten codicil is addressed in paras. 9-13 of the decision. H.M. Pierce J. finds that the handwritten document “substantially complies” with the requirements of the SLRA for holographic codicils: at para. 12. For example, the document is dated, includes the deceased’s name, and includes the deceased’s address – all in the deceased’s handwriting. Based on the substantive content of the document, H.M. Pierce H. is satisfied that the document sets out the deceased’s fixed and final intentions for the administration of his estate: at paras. 12-13.

93The documents before the court in Kertesz and Allan are both handwritten and unsigned. Is the type of document that the court has the discretion, pursuant to s. 21.1, to validate as a fully effective testamentary document limited to (a) unsigned, handwritten documents prepared by the deceased (i.e., in the language of s. 21.1, “not properly made”), or (b) erroneously executed documents that, if properly signed, would be valid (i.e., in the language of s. 21.1 “not properly executed”)? That question is a revised version of the question posed by Myers J. in White, at para. 38.

94I find that the court’s discretion pursuant to s. 21.1 is not limited to those two types of documents; the court’s discretion includes the authority to validate an electronic document as a fully and effective testamentary document, if the requirements of s. 21.1 are met.

c) The Court’s Discretion Pursuant to [s. 21.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s26/latest/rso-1990-c-s26.html#sec21.1_smooth) of the [SLRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s26/latest/rso-1990-c-s26.html)

95Until January 1, 2022, the SLRA did not include a validation provision. In Salmon, at para. 6, Leroy J. describes the validation provision in s. 21.1 as “[a] remedial enactment [which] represents a change to pragmatism in the administration of estates in this province. It is a departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in Ontario.”

96A similar observation is made by Philp J. in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.) about Manitoba’s validation provision, which is a precursor to s. 21.1 of the SLRA. At para. 58, Philp J. says that “the purpose of remedial provisions is to overcome the hardship and injustice – the consequences of triumph of form over content – which have often followed the literal application of the formal requirements found in wills statutes.”

97The above-quoted passage is cited by Sanfilippo J. in Madhani, at para. 30, and followed by Sanfilippo’s observation that s. 21.1 is “a remedial provision intended to overcome the hardship of imperfect compliance in the making of a will in Ontario.”

98What, then, are the limits prescribed in s. 21.1 to pragmatism, a departure from traditional principles, and an intention to overcome the hardship of imperfect compliance regarding testamentary documents? In answering that question, I consider the following factors.

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.⁷

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.⁸ 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.⁹

101For the reasons explained below, the extra-provincial decisions are of limited assistance for the purpose of statutory interpretation. That said, I note that in Haines v. Kuffner Estate, 2024 SKKB 51, the court was required to consider the validity, as a testamentary document, of a message, sent on an iPad by an individual who was hospitalized and no longer able to speak or write. I highlight that the application was unopposed and there was no competing testamentary document.

102The decision is, however, instructive for its consideration of the purpose of formal requirements for testamentary documents and a related curative provision – including in “modern reality”. In Haines, at paras. 35-36, Klatt J. makes the following observations as to that purpose:

[35] The formal requirements of the Act regarding execution are aimed at the goal of ensuring a testator’s intentions can be identified with sufficient clarity and certainty. The broad application of [the remedial section] permitting the validation of a testamentary document that does not comply with the formal rules is also aimed at this goal. [Citation omitted.]

[36] The broad interpretation of [the remedial section] of the Act is responsive to the modern reality that for some people, their only means of communication is through electronic devices. Here, it was the only means available to [the deceased] who was near death, too weak to write or speak. In this case, an inflexible interpretation and application of [the remedial section] would have denied [the deceased] the agency to direct how her estate was to be disposed of.

103The decision in Haines was released in March 2024. In 2023, the Legislature in Saskatchewan assented to legislation pursuant to which the creation of electronic wills is authorized: see The Wills Amendment Act, 2023, S.S. 2023, c. 45. In her factum, dated November 2024, Hanne highlights that the amending legislation was not yet in force. The decision in Haines pre-dates that legislation coming into force.

104Throughout this ruling, I have repeatedly described the court’s discretion pursuant to s. 21.1 of the SLRA as extending to validation of an electronic document as a fully effective testamentary document “if the requirements of s. 21.1 are met”. I review those requirements in the next section of this ruling.

d) The Requirements of s. 21.1 of the [SLRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s26/latest/rso-1990-c-s26.html)

105With s. 21.1 of the SLRA only recently enacted, the principles or framework for the exercise of the court’s discretion under that section stem from decisions from other provinces. For example, in Madhani and Salmon, Sanfilippo J. and Leroy J., respectively, rely on the decision of the Manitoba Court of Appeal in George. Additionally, in Madhani, Sanfilippo J. relies on three British Columbia decisions in which the principles from George were applied: at para. 33, citations omitted. In Salmon, Leroy J. relies on three additional decisions from Manitoba and a decision from British Columbia: at paras. 109-115, citations omitted.

106In her factum, Hanna cites decisions from Saskatchewan and British Columbia that are not cited in either Madhani or Salmon. The relevant statutes in both provinces include a remedial provision. None of the decisions cited by Hanna from either province make reference to a statute that is equivalent to the ECA and to which reference is made in the governing ‘wills’ statute. As a result, the extra-provincial decisions cited by Hanna are of minimal assistance on the matter before this court.

107It is not necessary to review the extra-provincial decisions in detail. In this ruling, I focus on two requirements identified in George, at para. 43, for the exercise of the court’s discretion prescribed in a remedial provision such as s. 21.1 of the SLRA.

108First, the court must be satisfied that the document or writing is authentic. Second the court must be satisfied that the document or writing found to be authentic represents the testator’s deliberate or fixed and final expression of intention as to the disposition of property on their death.

109Those two requirements provide the framework for the analyses carried out in the Ontario decisions in which the court determined an application pursuant to s. 21.1 of the SLRA. In Salmon, at para. 9, Leroy J. summarizes those requirements as follows: “the [a]pplicant bears the burden of proving document authenticity, the requisite intention, knowledge and approval of content and testamentary capacity.” In para. 87, above, I summarize the factors considered by Myers J. in Kertesz, in validating an unsigned, handwritten note. Those factors are the authenticity, chain of possession, and substantive content of the note (with the latter addressing the testator’s expression of their deliberate or fixed and final intention for the disposition of property on death).

110I agree with the observation of Leroy J., at para. 9 of Salmon, that there is (or, at a minimum, may be) an overlap in the evidence relevant to the two requirements set out in para. 108, above. That said, where it may be most challenging for an applicant to rely on an electronic document for the purpose of s. 21.1 is in establishing, on a balance of probabilities, that the document is authentic.¹⁰

111For example, in Cruz, it is when when addressing the authenticity of the subject document, that Myers. J. considers the chain of possession of the improperly executed document prepared by the deceased: at para. 7. The chain of possession includes that the deceased handed the signed, unwitnessed document to the executor named in the document (and to which a note was attached asking the executor to have the testator’s signature witnessed): at para. 7.

112The evidentiary requirements for authentication of an electronic document could be said to be analogous to the evidentiary requirements for the authentication of a note or document said to be in the testator’s handwriting. I will not speculate as to the nature and extent of the evidence required to satisfy the court that an electronic document is authentic – including as relates to chain of possession of the document.

113In George, the Manitoba Court of Appeal describes that province’s remedial or curative provision as imposing “a significant onus on an applicant”: at para. 97. In the same paragraph, the Court specifically addresses the requirement to satisfy the court that the subject document represents the testator’s deliberate or fixed and final expression of intention as to the disposition of property on their death. The Court therein says that the onus on the applicant in that regard “will only be satisfied by the presentation of substantial, complete and clear evidence relating the deceased’s testamentary intentions to the document in question.”

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.

116I return, again, to the decision in Madhani. Sanfilippo J. does not address whether the 2023 draft will was authentic: at paras. 42-47. He does not do so because his conclusion that an electronic document cannot be a will was determinative of the matter before him: at para. 46.

117Sanfilippo J. does, however, consider whether the 2023 draft will represents the deceased’s deliberate or fixed and final expression of intention as to the disposition of property on their death: at paras. 48-59. Sanfilippo J. concludes that the 2023 draft will does not do so: at para. 59.

118In reaching that conclusion, Sanfilippo J. (a) highlights the caution to be exercised in the absence of the testator’s signature; and (b) the significance of the testator’s signature (i.e., as evidence of the expression of a deliberate or fixed and final intention at the time the document is made): at para. 55. In addition, Sanfilippo J. relies on the fact that the 2023 draft will, prepared by the lawyer, was not approved by the testator at the time it was prepared: at para. 57. A copy of the document was sent, in electronic form, to the deceased’s niece, but not to the deceased: at para. 46. Sanfilippo J. refers to there being no evidence of the testator having a “final opportunity” to determine whether the document accurately set out their deliberate or fixed and final intentions: at para. 58.

119I agree with Sanfilippo J.’s analysis and conclusions as to why the electronic document, as it existed on the lawyer’s computer, does not satisfy the second requirement under s. 21.1. The analysis carried out by Sanfilippo J. is relevant to the court’s consideration, in future matters, of other electronic documents. I make that statement without intending to expand upon existing, or to establish any new, principles as to how the burden of proof for the second requirement is met.

120The conclusion reached by Sanfilippo J regarding the second requirement is, however, not necessarily relevant to the court’s consideration, in future matters, of other electronic documents; the conclusion reached in Madhani, like many of the decisions under s. 21.1, is fact-specific.

Summary

121I understand why Letekidan was drawn to rely on the heading to s. 21(2) of the SLRA – “No electronic wills” – in support of her position on the motion. At first glance, that heading appears to be a definitive summary of the significance of the interplay between the SLRA and the ECA. A detailed review of the statutes and the applicable case authorities, however, leads me to conclude that the end result is not as straightforward as that heading suggests.

122If the legislature intended that the end result is as Letekidan submits before this court, then the relevant statutory provisions fall short of fulfilling that intention.

123If the parties are unable to resolve the issue of costs of the motion, they shall arrange a case conference appearance to address whether costs submissions will be made in writing or at an oral hearing and a timetable for the exchange of written submissions.

124I wish to thank counsel for their considered, thoughtful, and detailed submissions.

Date: January 28, 2026

Madam Justice Sylvia Corthorn

APPENDIX

Footnote 4 previously stated:

⁴ Gebremariam v. Menghesha, Court file no. CV-23-93629-ES.

Footnote 4 now reads as follows:

⁴ Menghesha v. Gebremariam, Court file no. CV-23-93629-ES.

Paragraph [33] previously stated:

33The SLRA does include a definition of either “document” and “writing” (i.e., the words used in s. 21.1).

Paragraph [33] now reads as follows:

33The SLRA does not include a definition of either “document” and “writing” (i.e., the words used in s. 21.1).

Footnotes

1. 1For ease of reference and with respect, I refer to the applicant, the respondent, and other members of the family, including the deceased, Nabute Ghebrehiwet, by their respective first names.
2. 2Ontario Gazette, 5 June 2021, Vol. 154-23, p. 1656.
3. 3Throughout this ruling, I use the term “electronic document”. In doing so, I make no finding as to whether an “electronic document” and a “digital document” are exactly the same for the purpose of s. 21.1 of the SLRA.
4. 4Menghesha v. Gebremariam, Court file no. CV-23-93629-ES.
5. 5Driedger, Elmer A. Construction of Statutes, 2^nd ed. Toronto: Butterworths, 1983 as cited in Bell ExpressVu v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
6. 6The decisions are listed in chronological order, based on their date of publication.
7. 7I take judicial notice of the facts supporting subjects covered in para. 86. In doing so, I rely on the principles established in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863.
8. 8Once again, this factor is based on judicial notice taken of the communication tools available through modern technology.
9. 9Section 6 stipulates that “[a] testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.” The heading for the section is “Holograph Will”.
10. 10Regarding the burden of proof, see Madhani, at para. 41, citations omitted.