Ontario's Evolving Approach to Electronic Testamentary Documents

Just a few years ago, the possibility of electronic Wills was largely theoretical in Ontario. Today, there is discussion about whether they might be recognized through the resealing process if first validated in another jurisdiction. This has raised important questions about how electronic testamentary documents would interact with Ontario law.

Since then, Ontario has taken major steps in the direction of validating electronic Wills. One very recent example is the decision in Gebremariam v. Menghesha, 2026 ONSC 54.

Background Information

This case deals with an application to validate a testamentary document under section 21.1 of the Succession Law Reform Act, RSO 1990, c S.26.

The document was an electronic file that the deceased had previously emailed to his sister. The email was titled as his Will and existed only in electronic form, and it ended with the typed words “Signed: Nabute Ghebrehiwet.” The document was not manually signed by the testator, and neither was it witnessed.

The Court was not asked to declare the document valid as a Will. Instead, the issue was whether the application by itself could proceed, in light of section 31(1) of the Electronic Commerce Act, 2000, SO 2000, c 17, (ECA) which states that Wills and codicils cannot be created or executed electronically.

Creation versus Validation

The applicant argued that a difference must be drawn between asking the Court to validate a document as a Will and electronically preparing a Will. Even though the ECA does not allow for the use of electronic Wills, it does not prevent the Court’s ability and authority to approve a non-compliant document under the doctrine of substantial compliance.

The Court accepted this reasoning.

Justice Corthorn closely examined both the SLRA and the ECA, concluding that nothing in the legislation prohibits the court from validating an electronic document under section 21.1. Having reached this conclusion, the Court applied the established principles of statutory interpretation set out by the Supreme Court of Canada, interpreting the legislation in its entire context and in a manner consistent with its purpose and intent.

Electronic Commerce Act

When reviewing it, the Court noticed that the ECA is primarily created to enable legally effective electronic documents and to prevent consequences that may otherwise arise at the document creation stage. Instead of acting as a barrier, the legislation is created to assist the legal recognition of electronic records in the correct circumstances.

The Court then considered how this purpose connects with section 21.1 of the Succession Law Reform Act (SLRA). The SLRA does not define “writing” or “document” in a way that excludes electronic formats for the purposes of section 21.1. The ECA does not automatically view electronic wills as valid, but it doesn’t prevent a court from validating one under section 21.1 of the SLRA.

Realistically, this difference is significant. The ECA does not limit the Court’s remedial authority to validate a testamentary document that does not strictly meet the formal requirements. Instead, the Court retains the power to determine whether a non-compliant document, including one electronic form, should be recognized as valid under the substantial compliance framework from section 21.1.

Justice Corthorn also analyzed the developing case law since section 21.1 came into force in 2022, clarifying that two elements must be satisfied before a document can be validated. First, the document must be authentic. Second, it must reflect the testator’s deliberate, fixed and final intention about how their property is to be distributed.

In addition, with no absolute legal rule that prohibits the validation of an electronic will, the main obstacle regarding this case became authenticity. The Court underlined that the testamentary document had been emailed to the applicant by the testator, an element relevant to assessing whether the document was authentic. Therefore, this matter was permitted to continue to a hearing on its merits.

In conclusion, the decision highlighted the expanding role of section 21.1 and signals continued development in Ontario’s jurisprudence about electronic testamentary documents. It also states that further judicial guidance is likely, including a future determination on whether the document in Gebremariam satisfies the validation requirements under section 21.1.

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