White v. White, 2023 ONSC 7286
The Ontario Superior Court considered an important and developing issue in estate litigation: when can a Court look behind a formally executed Will and examine a deceased person’s lawyer’s file to determine whether an unsigned draft Will may still be legally effective?
The case highlights the growing significance of section 21.1 of the Succession Law Reform Act (“SLRA”), Ontario’s relatively new “substantial compliance” provision for Wills.
The Background
Violet White died in August 2022 leaving behind a formally executed 2014 Will. Under that Will:
- her son Thorne White was entitled to 10% of the residue in trust; and
- her other son, Raymond White, received 90% of the residue.
Before her death, however, Violet reportedly decided to make substantial changes to her estate plan. She retained a new lawyer, Maria Simone, and discussed revising the Will to increase Thorne’s share to approximately 30–40% of the estate.
A meeting was scheduled to finalize and sign the new Will. Before that could occur, Violet suffered a stroke and was hospitalized. Ms. Simone attended at the hospital with what Thorne alleged was a printed draft Will ready for execution. Violet was too ill to proceed and died several days later without signing the document.
Thorne then brought an application seeking production of the lawyer’s file, including draft Wills and notes, in order to pursue a claim that the unsigned draft should nevertheless be recognized as a valid Will under section 21.1 of the SLRA.
Ontario’s “Substantial Compliance” Provision
Section 21.1 of the SLRA came into force on January 1, 2022. It provides:
“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 … the Court may … order that the document or writing is as valid and fully effective as the will of the deceased … as if it had been properly executed or made.”
This provision dramatically changed Ontario estate law. Prior to January 1, 2022, an improperly executed Will was generally invalid, even where the deceased’s intentions were perfectly clear.
Section 21.1 now permits courts to validate certain defective Wills where the document reflects the deceased’s fixed and final testamentary intentions.
The Court’s Concern: Fishing Expeditions
Justice Myers emphasized that the Court must proceed cautiously.
Historically, section 9 of the Estates Act was mainly used to locate missing Wills. But with the enactment of section 21.1, disappointed beneficiaries may now attempt to search through lawyers’ files hoping to discover documents that could support a new Will claim.
The Court warned that unrestricted access to solicitor files could create dangerous “fishing expeditions” and undermine solicitor-client privilege.
Justice Myers noted that Courts should not permit disgruntled relatives to rummage through confidential legal files merely in the hope of finding some document that might arguably qualify as a Will.
Why Disclosure Was Ordered Here
Despite those concerns, the Court ordered production of the lawyer’s file because the facts were unusually strong.
Important factors included:
- evidence that an actual draft Will existed;
- evidence that the deceased discussed the proposed changes in detail;
- evidence that the lawyer attended at the hospital with a printed draft;
- the commencement of a formal section 21.1 application;
- the participation of all interested beneficiaries;
- the consent of Raymond White, who stood to lose financially if the new Will were validated; and
- the estate trustee’s decision not to oppose disclosure.
Justice Myers stressed repeatedly that the decision was highly fact-specific and should not be interpreted as opening the floodgates to broad pre-litigation discovery in estate cases.
The Electronic Commerce Act Problem
One of the most interesting aspects of the decision involves Ontario’s Electronic Commerce Act, 2000.
Section 21.1(2) of the SLRA states:
“Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.”
Section 31 of the Electronic Commerce Act excludes wills from the statute’s recognition of electronic documents.
Ordinarily, the Electronic Commerce Act allows electronic records to satisfy legal requirements for documents to be “in writing.” However, Ontario specifically excluded wills from those provisions.
As a result, Ontario still does not recognize electronic Wills.
Justice Myers raised an important unresolved question:
Can a purely electronic draft Will, existing only on a lawyer’s computer qualify as a “document or writing” under section 21.1?
The Court suggested there may be a major distinction between:
- a physical printed draft Will that existed before death; and
- an electronic-only file or lawyer’s notes stored digitally.
Justice Myers wrote:
“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.”
The Court deliberately left this issue unresolved.
In White v. White, the problem was avoided because there was evidence that a printed paper draft existed and had been physically brought to the hospital before the deceased died.
Considerations
White v. White is one of the first Ontario cases to explore the procedural consequences of section 21.1 and how far Courts may go in permitting access to solicitor files in support of substantial compliance claims.
The case confirms several important principles:
- Ontario Courts remain cautious about expanding section 21.1 too broadly;
- solicitor-client privilege remains a significant concern in estate litigation;
- Courts may permit disclosure where there is credible evidence of an actual draft will; and
- purely electronic drafts or lawyer notes may present serious legal difficulties under Ontario law.
The decision also demonstrates that Ontario Courts are developing this new area incrementally, one fact-specific case at a time.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com