Mother and sister of deceased dispute whether to validate email attachment as his will
A three-justice panel of the Ontario Court of Appeal declined to reconstitute itself as the Divisional Court to address an application for leave to appeal from a Superior Court order interpreting s. 21.1 of Ontario’s Succession Law Reform Act, 1990 (SLRA).
On Jan. 27, 2022, a 61-year-old longtime Ottawa resident passed away without a spouse or children. His mother and nine siblings survived him.
The deceased apparently sent a March 2020 email with the subject line “Please be my witnesses” to a sister, another sibling, the lawyer representing him in personal injury litigation, and a CBS television program.
The email body, addressed to the program host, had no other substantive content. Attached to the email was a one-page, entirely typewritten document purporting to be his will.
In the attachment, the deceased apparently provided that he was of sound mind and wished to leave everything he owned to his sister. In the document, the deceased supposedly stated the charities his sister should support using the inheritance.
The parties to the present proceeding were the mother and the sister of the deceased. They did not challenge that:
- The deceased would have died intestate unless the court declared the attachment valid and fully effective as his will
- The attachment did not meet the SLRA requirements
In the event of an intestacy, the mother would inherit the estate. Its most valuable asset was the six-figure settlement from his personal injury litigation, negotiated in 2023 after his death.
Under s. 21.1 of the SLRA, the sister applied for an order declaring that the attachment was valid and fully effective as her brother’s will.
The issue was whether s. 21.1 of the SLRA and Ontario’s Electronic Commerce Act, 2000 (ECA) prohibited the court from validating an electronic document as a fully effective testamentary document.
Given the interplay between the SLRA and the ECA, the parties disputed whether the sister could rely on the attachment to support her s. 21.1 application. The sister alleged that s. 21.1 did not prohibit:
- a person from applying for a court order declaring an electronic document valid and fully effective as a will
- the court from validating an electronic document as a fully effective will if the document otherwise met the s. 21.requirements
In her motion, the mother asserted that the court’s s. 21.1 discretion to validate an otherwise non-compliant document as a testamentary document did not extend to the validation of an electronic or digital document.
Superior Court interpretation
On Feb. 3, in Gebremariam v. Menghesha, 2026 ONSC 545, the Ontario Superior Court of Justice decided that:
- It had the discretion to validate an electronic document as a fully effective testamentary document if it complied with the s. 21.1 requirements
- A person could apply for an order that an electronic document was valid and fully effective as a testamentary document under s. 21.1
In this case, the Superior Court found the sister entitled to proceed with her application for an order declaring the attachment valid and fully effective as her brother’s will under s. 21.1.
Regarding the mother’s reliance on the heading of s. 21(2) of the SLRA (“No electronic wills”) to support her motion, the Superior Court acknowledged that the heading appeared at first glance as a definitive summary of the important 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,” wrote Justice Sylvia Corthorn for the Superior Court.
Appeal ruling
The mother applied for leave to appeal against the Superior Court order. On May 21, in Menghesha v. Gebremariam, 2026 ONCA 364, the Court of Appeal for Ontario granted the sister’s motion to quash.
The appeal court considered the Superior Court order interlocutory because it ruled on the legal interpretation of s. 21.1 of the SLRA. The appeal court explained that the order did not determine the parties’ real dispute regarding:
- whether to validate the electronic document under s. 21.1
- whether the deceased sent the document
- whether he had testamentary capacity
