Ontario court rejects electronic will

A purely electronic will cannot be considered valid, an Ontario court has ruled in the case of a man who prepared a new will but died on the day he was scheduled to sign it.

According to a decision from the Ontario Superior Court of Justice, Jamshed Mavalwala died in November 2023 after finishing revisions to his will. He had planned to attend his lawyer’s office that day to sign the updated document — but died that morning, before the appointment.

Given the circumstances, the estate trustee asked the court for direction on whether the new will should be considered valid or whether his previous will, prepared in 2021, remained in force.

The 2021 will divided his estate equally among his surviving family members — his two children, six siblings and six nieces and nephews.

The revised will, however, sought to disinherit several family members, add a charity as a beneficiary and finance a scholarship.

On the day he was scheduled to visit his lawyer’s office, the Wheel-Trans ride he’d arranged listed him as a “no-show.” It turned out he had died in his apartment that morning.

The court was asked to determine whether the unsigned revised will should be considered valid.

It concluded that while the draft will was authentic “in the sense that it was created and preserved” by his lawyer, it could not be considered valid because it remained purely electronic — a Word document stored on the lawyer’s system. “There is no evidence that the 2023 draft will was used in physical form at any material time,” the court said.

The legislation governing the validity of electronic documents does not apply to wills, which must be made in physical form, it noted.

“As an electronic document cannot be a will, and as the 2023 draft will is an electronic document, the 2023 draft will cannot be declared … to be the valid and effective last will and testament of the deceased,” the court ruled.

While that finding was sufficient to invalidate the revised will, the court also concluded that the draft didn’t reflect his final wishes, noting that the document wasn’t sent to Mavalwala directly but through the estate trustee’s spouse.

“… There is no evidence that the 2023 draft will was reviewed by Jamshed or that he approved of its contents,” it said.

The court added that the final review to confirm his intentions was to take place at the signing appointment. “This final step did not take place because of Jamshed’s death and there was no earlier meeting that stands as a proxy for this final meeting. As a result, the drafting lawyer was not in a position to assess whether the 2023 draft will expressed the deliberate or fixed and final intentions of Jamshed,” it concluded.

The court found that while there was no doubt Mavalwala intended to change his will, “expressions of intentions alone are insufficient to ground a valid will.”

As a result, it concluded that the 2023 draft could not be considered valid, and the 2021 will must prevail.