Handwritten Hospital Note Rejected as Will: Ontario Court Clarifies Limits of Section 21.1(1) SLR

Deanna McKinlay, in her proposed capacity as estate trustee of the Estate of Virginia Beecroft, applied for court directions on whether an informal document (the “Proffered Document”) should be recognized as a valid testamentary instrument under s. 21.1(1) of the Succession Law Reform Act (“SLRA”). In the alternative, she sought recognition of the deceased’s 2020 Will and 2021 Codicil.

In a recent decision that underscores the importance of proper estate planning and formal execution, the Ontario Superior Court of Justice reaffirmed the legal threshold required to validate informal testamentary documents. In McKinlay v. Currie et al., 2025 ONSC 3471, the Court declined to give effect to a hastily prepared, handwritten document signed in a hospital bed two days before death, finding it lacked the hallmarks of a fixed and final expression of testamentary intention.

The Facts

The case arose after Virginia Beecroft passed away in November 2023, leaving behind a lawyer-drafted will dated September 30, 2020, and a codicil from June 2021. These instruments excluded all three of her children, including the applicant’s son, Daniel Currie, and instead directed her estate to be distributed among various charities. Deanna McKinlay, the deceased’s first cousin, applied for directions on whether a separate document she had drafted in the hospital—purporting to leave 25% of the estate to Daniel—could be treated as a valid will or codicil.

The document in question was mostly written by Deanna, with only a few illegible words in the deceased’s own hand. It was signed by both Deanna and the deceased on November 19, 2023, in a hospital room where the deceased lay in failing health. Deanna claimed the deceased had been considering a change to her will earlier that year, but had taken no steps to consult a lawyer or formally revise her testamentary documents.

Court Ruling

Justice Bordin rejected the argument that the document could be saved as a valid will under section 21.1(1) of the Succession Law Reform Act. While that section gives Ontario courts discretion to validate improperly executed documents that clearly set out the deceased’s testamentary intentions, the Court found the evidentiary record wanting. The deceased had made no proactive effort to revise her will, had not communicated any instructions to a lawyer, and had been largely passive in the creation of the hospital document—which was prompted, drafted, and structured entirely by Deanna.

Notably, the Court highlighted the absence of medical evidence regarding capacity, the illegibility of the deceased’s handwriting, and the lack of clarity surrounding the document’s references to earlier will clauses. The evidence fell short of demonstrating that the deceased had a fixed and final intention to change her estate plan. Instead, it appeared that Deanna had orchestrated the process and proposed the 25% gift to Daniel herself.

In the result, the Court confirmed that the estate should be administered under the formal 2020 Will and 2021 Codicil, and granted Deanna a certificate of appointment as estate trustee accordingly. The Court also granted a declaration confirming the intended Salvation Army beneficiary under the will.

Ontario’s Succession Law Reform Act (“SLRA”) sets out the formal requirements for a valid will. Under section 4(2), a will must be signed by the testator at its end, witnessed by two individuals present at the same time, and signed by those witnesses in the testator’s presence. An exception exists for holograph wills, which must be entirely handwritten and signed by the testator, as permitted under section 6.

Traditionally, failure to meet these formal requirements rendered a will invalid. However, with the introduction of section 21.1(1) of the SLRA in 2021, Ontario courts were given curative powers to validate documents that do not comply with the statutory formalities. Specifically, the court may declare that a document is as valid and fully effective as a will—or as a revocation, alteration, or revival of a will—if the document “sets out the testamentary intentions of a deceased.”

Courts applying section 21.1(1) have emphasized that the document must reflect a “deliberate or fixed and final expression of intention” by the deceased as to the disposition of their property on death. This analysis is highly fact-specific. While courts have validated documents that were unsigned, undated, or improperly witnessed—such as typed or handwritten letters, emails, or draft wills—they have required clear evidence of the deceased’s knowledge, approval, and intent for the document to serve as their final will.

This decision is another cautionary tale in the developing jurisprudence around section 21.1(1). While the provision offers flexibility to save defective wills, courts remain firmly focused on whether the document reflects the testator’s own deliberate and final expression of intent. Drafting assistance, even in good faith, must not cross the line into authorship. Without clear proof that the testator understood and approved the contents of the document, and intended it to be their final will, such documents will not displace formally executed estate plans.

If you or a loved one are considering revising a will, especially in urgent or hospital settings, it is critical to seek legal advice. As McKinlay shows, even well-intentioned efforts can result in costly litigation and uncertainty for surviving family members. Contact our estates litigation lawyers at 416-847-1859.