Executive Summary: Key Legal and Evidentiary Issues

• Court asked to validate an unsigned draft will under s. 21.1(1) of Ontario’s Succession Law Reform Act (SLRA) where the testator died before execution.
• Central question was whether the draft will reflected the deceased’s fixed and final testamentary intentions, as distinct from preliminary expressions of wishes.
• Evidence included the drafting lawyer’s instructions notes, the unexecuted will, and a separate handwritten asset list with differing bequests and an instruction not to notify siblings.
• Discrepancies between the handwritten list and the draft will, and the absence of proof the deceased reviewed or approved the draft, undermined the argument that the draft was final.
• The court applied emerging case law under s. 21.1 SLRA and held that expressions of intention alone are insufficient to validate a technically deficient will.
• Application to validate the draft will was dismissed, leaving the estate to be distributed on intestacy to estranged siblings and nephews, with the respondents successful and costs to be determined later.

Factual background

Timothy John Bechtel died suddenly of a heart attack on September 30, 2024, twelve days after a lawyer prepared a draft will and powers of attorney that he never signed. He had never married, had no common law spouse or children, and was predeceased by his parents. He was estranged from his surviving siblings, though he maintained a positive relationship with his nephews and had a long-standing relationship with the applicant, Tammy Lyn Smith, a former employee and later close friend. There were no prior wills. In August 2024, Timothy was hospitalized for kidney stones and learned he had an enlarged aorta. On September 18, 2024, he met with lawyer Lorne Plater, an experienced estates practitioner, to prepare a will and continuing powers of attorney. Timothy attended alone, had testamentary capacity, and appeared clear in his instructions regarding how he wished his estate to be distributed. The meeting lasted less than 30 minutes, during which Mr. Plater used his standard will-intake form to take handwritten notes recording proposed executors, beneficiaries, and cash legacies. Mr. Plater’s notes recorded that Tammy would be the sole executor and attorney for property and personal care, and that certain friends, nephews, a charity, and a neighbour would receive specific gifts. Mr. Plater then drafted the will and powers of attorney in accordance with those notes and, by letter dated September 23, 2024, sent the drafts to Timothy, enclosing a copy of each and booking an appointment for October 16, 2024 for execution. The letter expressly invited Timothy to review the drafts and “advise of any changes or corrections” preferably two to three days before the signing appointment. Shortly after Timothy’s death, Tammy went to his home and found the draft will, draft powers of attorney, and covering letter from Mr. Plater. The drafts were in an unaltered state, with no written annotations, corrections, or memoranda by Timothy. It was unclear whether they had been kept in a sealed envelope or left openly among his belongings. Tammy also located a separate, undated handwritten document in Timothy’s own writing listing his assets and some directions concerning distribution. That document contained several key features: it directed $50,000 each to his three nephews (Mark, Andy, and Kevin), $50,000 each to Scott and Sheri Harper, $50,000 to a veterinary facility (the Arnprior Animal Hospital), a residue gift of “everything else” to Tammy, and a statement that his siblings were not to be notified of his death. In addition, Tammy later learned that Timothy had named her and the Arnprior Humane Society as equal beneficiaries of a London Life insurance policy, and had designated the Humane Society as sole beneficiary of certain Canada Life investment accounts, further suggesting he preferred to benefit friends and a charity rather than his estranged siblings. The estate itself was estimated at about $1,275,000 as of October 2024. In the absence of a valid will, the SLRA’s intestacy rules would direct that property to his surviving siblings and the children of his predeceased brother—precisely the family members with whom he was estranged and whom he had indicated, at least informally, he did not wish to benefit.

Terms of the draft will and handwritten document

The draft will, prepared on instructions taken at the September 18 meeting, appointed Tammy as estate trustee, with friend Terry Emon as alternate. It provided cash legacies of $75,000 each to nephews Mark, Andy, and Kevin; $100,000 to friend Scott Harper; $50,000 to friend Terry Emon; and $75,000 to the Arnprior Humane Society. It also left a riding lawnmower to neighbour Doug Smith, and gave the residue of the estate to Tammy as residual beneficiary. The draft powers of attorney named Tammy as attorney for both property and personal care, consistent with the lawyer’s intake notes. The handwritten asset-list document differed in important respects. It set gifts of $50,000 (rather than $75,000) for each nephew, directed $50,000 each to Scott and Sheri Harper (whereas only Scott was named for $100,000 under the draft will), allocated $50,000 (rather than $75,000) to the Arnprior Animal Hospital (a different entity from the Arnprior Humane Society named in the will), and again left “everything else” to Tammy, while expressly directing that his siblings were “not to be notified.” The two sets of directions thus overlapped in structure—friends, nephews, and a charity benefiting, siblings excluded, residue to Tammy—but differed in the exact amounts, specific beneficiaries (hospital vs. humane society, plus addition of Sheri Harper), and charities named. These discrepancies became central to the court’s assessment of whether any document could be said to embody Timothy’s final testamentary intentions.

Procedural posture and legal issues

Tammy commenced an application under s. 21.1(1) of the SLRA seeking a court order validating the unsigned draft will as if it had been properly executed. Section 21.1 allows the Superior Court of Justice to declare a document or writing that was not properly executed or made under the Act to be as valid and effective as a will, or as a revocation, alteration or revival of a will, if the court is satisfied that it sets out the “testamentary intentions” of the deceased. At the same time, s. 4(2) of the SLRA preserves the formal execution requirements for a traditional will: signature at the end by the testator (or another at their direction), acknowledgment of that signature in the presence of two or more witnesses present together, and subscription by those witnesses in the testator’s presence. Since Timothy never signed the will, and there were no attesting witnesses, the document was plainly invalid as a formal will. The issue, therefore, was whether the court should cure that deficiency under s. 21.1 by recognizing the draft as reflecting Timothy’s fixed, final testamentary intentions. The respondents (his surviving siblings and the children of his predeceased brother) opposed the application, arguing that the evidence showed only preliminary intentions or expressions of wishes, not a completed and final testamentary decision. The case was argued initially in October 2025 and again in January 2026, with the judge holding over reasons pending release of the Court of Appeal’s decision in Hejno v. Hejno, which addressed s. 21.1 but did not fully articulate a definitive test. After Hejno was released, counsel agreed no further substantive submissions were necessary.

Legal framework and case law on will validation

The court approached s. 21.1 within a growing body of Ontario and other Canadian jurisprudence dealing with “curative” or “validation” provisions. A central concept, drawn from cases such as Estate of Young, Skopyk Estate, and Smith Estate (Re), and adopted in more recent Ontario decisions like White v. White and Salmon v. Rombough, is that the court must be satisfied that the impugned document represents a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.” Merely expressing how one would like property to go, or giving provisional instructions to a lawyer subject to further review, is not enough to amount to a final will. The judge canvassed Ontario decisions in which s. 21.1 had been used primarily to cure technical defects in already signed wills—such as mistakes about witnesses, attestation clauses, or execution formalities. By contrast, the applicant relied on Grattan v. Grattan, an unreported decision where a draft will was validated after the deceased had reviewed the emailed draft, marked minor amendments, and returned it to the lawyer. In that case, the court found that the last revised draft accurately reflected the deceased’s testamentary intentions. More recently, in Madhani v. Fast, the Ontario Superior Court refused to validate an unsigned electronic draft will, partly because of statutory limits on electronic wills and partly because the deceased had not reviewed the final draft and the evidence did not show a fixed, final intention. The judge in the present case adopted Madhani’s distinction between “expressions of intentions” and true “testamentary intentions,” emphasizing that the former, by themselves, cannot ground a valid will. Against that backdrop, the question was whether Timothy’s instructions to his lawyer and the existence of the unsigned draft (combined with the handwritten list and other extrinsic evidence) satisfied the high bar of a fixed and final testamentary decision.

Assessment of the evidence of intention

The court accepted that Timothy was clear that he wanted to exclude his siblings and favour Tammy, his nephews, friends, and an animal-related charity. His beneficiary designations on life insurance and investment accounts, his choice not to name siblings as legatees in the draft will, and the handwritten note stating that his siblings were not to be notified supported this overall pattern. However, the judge found that this general direction of preference was not the same as proof that the particular terms of the September 23 draft will constituted his final, settled testamentary scheme. Several evidentiary issues weighed heavily against validation. First, while there were similarities between the handwritten asset list and the draft will, there were also “notable discrepancies” in amounts and recipients, especially with respect to the nephews’ gifts, the treatment of the Harpers, and the identity and sums for the animal-related beneficiary. These inconsistencies suggested that Timothy had at least once changed his mind between preparing the handwritten note and instructing his lawyer, and left open the possibility that he might have altered his plan again after reviewing the draft. Second, there was no evidence that Timothy actually reviewed the draft will. The documents were found at his home, unmarked, and there was no covering note or communication indicating that he had read, approved, or requested changes to the draft. Third, Mr. Plater’s letter explicitly invited Timothy to review and provide “any changes or corrections” two or three days prior to the signing meeting. The very structure of the retainer contemplated that the draft was a working document, subject to prospective revision prior to formal execution. Fourth, the deadline for suggesting changes had not yet passed when Timothy died. He died before the window closed and before the scheduled execution date, meaning he still had time in which he might have reconsidered the arrangements. Fifth, while Mr. Plater’s evidence was that Timothy appeared decisive in his initial instructions, the lawyer nonetheless scheduled a follow-up weeks later specifically to allow for review and corrections, reinforcing the notion that the September draft was not treated as a final instrument. The judge also underscored that people can and do change their minds about testamentary dispositions, and that the record here gave no clear indication that Timothy had settled permanently on the exact scheme in the draft will rather than viewing it as a step in an ongoing process.

Outcome and consequences for the estate

On this evidentiary record, the court concluded that the unsigned, unwitnessed draft will did not meet the statutory threshold under s. 21.1 of the SLRA. The document could not be regarded as Timothy’s deliberate, fixed, and final expression of testamentary intention. Instead, it was treated as a preliminary product of instructions to a lawyer, left for review and possible alteration, that Timothy tragically died before he could consider further or execute. As a result, the application to validate the draft will was dismissed, and s. 4(2)’s formal requirements continued to govern. In the absence of any valid will, Timothy’s estate falls to be distributed on intestacy under the SLRA, with his estranged siblings and the children of his predeceased brother taking in accordance with the statute, rather than Tammy, the friends, or the named charity taking under the unvalidated draft. The court found that the respondents were the successful party on the application and therefore presumptively entitled to their costs. However, given the novelty of s. 21.1, the existence of at least one supportive first-instance decision, and the reasonableness of Tammy’s attempt to have the draft will validated, the judge signalled that it might be appropriate for the respondents’ legal costs to be paid by the estate rather than personally by the applicant. The court did not fix any amount of costs or other monetary award in this decision, instead directing a timetable for written costs submissions from both sides. Accordingly, while the respondents succeeded in opposing the validation application, no specific dollar figure was awarded in their favour at this stage, and the total monetary amount (if any) that will ultimately be ordered for costs cannot yet be determined.