By Sarah J. Mumtaz, Sarah Mumtaz Law Offices
June 9, 2026
The decision in Madhani v. Fast, 2025 ONSC 4100, provides an important examination of Ontario’s relatively recent substantial compliance provisions under the Succession Law Reform Act (“SLRA”) and highlights the evidentiary challenges that arise when a court is asked to validate an unsigned draft will following a testator’s death.
While Ontario courts have increasingly demonstrated a willingness to give effect to a deceased person’s intentions notwithstanding technical deficiencies in execution, Madhani serves as a reminder that the substantial compliance provisions are not a substitute for proper estate planning and execution. More importantly, the decision underscores the critical role that clear, direct, and contemporaneous communication between a client and their lawyer plays in establishing testamentary intention.
The Legislative Framework
Historically, Ontario followed a strict compliance model. A will that failed to meet the formal execution requirements of the SLRA was generally invalid, regardless of the strength of the evidence demonstrating the deceased’s intentions.
This changed in January 2022 when Ontario introduced section 21.1 of the SLRA, granting the Court authority to order that a document or writing be fully effective as though it had been properly executed if the Court is satisfied that the document sets out the testamentary intentions of a deceased person.
The amendment reflected a broader trend across Canadian jurisdictions toward a substantial compliance regime. The legislative objective was to reduce the harsh consequences of invalidating testamentary documents solely because of technical defects where the deceased’s intentions could otherwise be established.
However, section 21.1 did not eliminate the requirement of proving testamentary intention. Rather, it shifted the focus of the analysis. The question is no longer simply whether the document was properly executed, but whether the document embodies the deceased’s deliberate and final testamentary intentions.
As Madhani demonstrates, that evidentiary burden remains significant.
The Facts
The deceased had engaged legal counsel to prepare a new will. Drafts were exchanged and discussions occurred regarding the proposed testamentary scheme. A signing appointment had been scheduled.
Tragically, the deceased passed away before executing the document.
Following the deceased’s death, an application was brought seeking an order validating the unsigned draft will pursuant to section 21.1 of the SLRA. The applicants argued that the draft reflected the deceased’s testamentary wishes and should therefore be treated as a valid will notwithstanding the absence of formal execution.
The application required the Court to determine whether the evidence established that the draft represented the deceased’s fixed and final testamentary intentions.
The Court’s Analysis
The Court began by emphasizing that the substantial compliance provisions do not authorize courts to speculate regarding a deceased person’s intentions. Rather, the Court must be satisfied, based on the evidentiary record, that the document in question was intended by the deceased to constitute his or her final will.
This distinction is critical.
A court is not tasked with determining what the deceased likely wanted. The court must determine whether the document itself was intended by the deceased to have testamentary effect.
The evidence demonstrated that the deceased had participated in discussions regarding the draft will and had expressed agreement with aspects of its contents. However, the Court found that this evidence fell short of establishing that the draft represented the deceased’s final and settled testamentary intentions.
The Court noted that estate planning is often an iterative process. Clients routinely request revisions, reconsider beneficiaries, alter distributions, modify executor appointments, and seek further advice before executing a final document. The mere existence of a draft will, even one that appears substantially complete, does not necessarily establish that the testator had concluded the decision-making process.
Importantly, the Court distinguished between a person’s wishes and their final testamentary intentions. While evidence may establish that a person generally intended to leave assets in a particular manner, section 21.1 requires evidence that the specific document in question was intended to operate as the person’s will.
The Court ultimately concluded that this threshold had not been met.
The Significance of Direct Communication with Counsel
One of the most noteworthy aspects of the decision is the Court’s treatment of the evidentiary record concerning the deceased’s approval of the draft.
Estate litigation frequently involves attempts to reconstruct a deceased person’s intentions through family members, friends, beneficiaries, and other third parties. While such evidence may be relevant, it is often vulnerable to concerns regarding reliability, interpretation, and bias.
The strongest evidence of testamentary intention typically comes directly from the testator.
In Madhani, the Court’s analysis illustrates the challenges that arise when a lawyer is unable to provide clear evidence that a client reviewed, approved, and intended a particular draft to serve as their final testamentary document.
From a practice management perspective, the decision reinforces several important principles:
First, lawyers should maintain detailed records of client instructions, including contemporaneous notes documenting the client’s review and approval of draft documents.
Second, significant revisions and approvals should, whenever possible, be confirmed directly with the client rather than through intermediaries.
Third, where a client indicates satisfaction with a draft will and wishes to proceed, that instruction should be clearly documented.
Fourth, where urgency exists due to age, illness, travel, or other circumstances, counsel should consider whether expedited execution arrangements are appropriate.
The evidentiary value of these communications cannot be overstated. In many validation proceedings, the solicitor’s file becomes the primary source from which the Court must determine whether a document truly reflects a deceased person’s final testamentary intentions.
The Limits of Ontario’s Substantial Compliance Regime
The decision is also significant because it demonstrates that Ontario’s substantial compliance provisions are not intended to rescue every incomplete estate plan.
Following the enactment of section 21.1, some commentators questioned whether courts would adopt a liberal approach to validating draft wills. While Ontario courts have shown a willingness to cure technical defects where testamentary intention is clear, Madhani confirms that substantial compliance remains fundamentally evidence-driven.
The legislation does not eliminate the need for execution.
Nor does it permit courts to complete unfinished estate planning on behalf of a deceased individual.
Rather, the Court’s role remains confined to determining whether the document before it represents the deceased’s final expression of testamentary intent.
Where uncertainty exists, validation will not be granted merely because the document appears reasonable or because family members believe it reflects what the deceased wanted.
Practical Lessons for Estate Planning Lawyers
The implications of Madhani extend beyond estate litigation and into everyday estate planning practice.
For lawyers, the decision highlights the importance of meticulous file management and communication practices. Detailed notes, written confirmations of instructions, and prompt follow-up regarding draft documents may become critical evidence if a client’s intentions are later challenged.
For clients, the case serves as a reminder that a draft will remains exactly that—a draft. No matter how comprehensive the document may appear, it does not provide the same certainty as a properly executed will.
The risks associated with delay are particularly acute where clients have experienced changes in family circumstances, acquired significant assets, entered new relationships, or wish to alter existing testamentary arrangements.
Conclusion
Madhani v. Fast represents an important contribution to the developing jurisprudence surrounding section 21.1 of the Succession Law Reform Act. The decision confirms that while Ontario courts possess broad authority to validate imperfect testamentary documents, that authority remains grounded in proof of final testamentary intention.
The case reinforces a principle that estate practitioners have long understood: the most effective way to ensure a client’s wishes are respected is not through litigation after death, but through careful planning, prompt execution, and clear communication during life.
Ultimately, Madhani is not simply a case about an unsigned draft will. It is a case about evidence. More specifically, it is a case about the evidentiary significance of a client’s direct communication with counsel and the difficulties that arise when a court is asked to infer final testamentary intention from an incomplete planning process.
In an era of increasing reliance on electronic communications and informal exchanges, the decision serves as a timely reminder that clarity, documentation, and timely execution remain the cornerstones of effective estate planning.