Restoring Intent: Hejno v. Hejno and the Limits of Validation
In the world of wills and estates, the law has traditionally centred around strict formality – if a will was not signed and witnessed as prescribed by the governing law, namely the Succession Law Reform Act (the “SLRA”), it was void.
In 2021, this changed with the introduction of a new provision of the SLRA, section 21.1(1). This “curative” provision allows the Ontario Superior Court of Justice to validate a non-compliant testamentary document, such as an unwitnessed will.
This article will address the recent Ontario Court of Appeal decision in Hejno v. Hejno, 2025 ONCA 876, which helps clarify the court’s new power and its limitations.
Case Overview
The deceased died on May 6, 2024, leaving behind a complex estate planning history that included a properly executed 2018 will and, later, primary and secondary wills that were improperly executed in 2022.The 2022 wills were witnessed only by the deceased’s accountant, who retained photocopies but no original. In early 2024, new wills were prepared for the deceased, but were not finalized before his death, particularly the deceased remained undecided about material components of his estate plan.
Upon his death, the respondent located these 2024 drafts and sought to validate them under s. 21.1 of the SLRA, with the 2022 wills advanced as an alternative. The respondent’s application was unopposed, and the judge validated the 2024 drafts without providing reasons. The deceased’s family members appealed the judge’s decision on the basis that the drafts did not reflect the deceased’s true intentions.
Hejno’s Impact on Validation Claims
The Court of Appeal ruled that s. 21.1(1) of the SLRA is not a “cure all” for incomplete or uncertain estate planning. To be validated, the Court stated that a document must demonstrate a fixed and deliberate testamentary intention. In Hejno, the deceased’s solicitor provided evidence that the deceased remained undecided on key aspects of his estate plan until shortly before his death. This fluctuating intention, combined with inaccurate information on corporate holdings, led the Court to conclude that the drafts did not meet the threshold of a final testamentary intention.
The Court further underscored that, even where an application is unopposed, a judge is still required to ensure that any document validated under s. 21.1(1) truly reflects the testator’s intentions, supported by proper evidence and law. In Hejno, the evidentiary record contained conflicting information regarding share ownership as well as evidence from the deceased’s own counsel confirming unresolved aspects of his planning.
The Court of Appeal addressed the applicant’s alternative request to validate the 2022 wills, refusing validation on the basis that the exercise is a fact intensive inquiry that often turns on extrinsic evidence. Importantly, the Court emphasized that such inquiries are best suited for the Superior Court of Justice, where parties have access to discoveries, testimony, and the ability to test the applicants’ assertions through cross examination. In doing so, the Court reaffirmed that validation requires a thorough evidentiary assessment of the deceased’s true intention, an assessment that must be open to challenge, contradiction, and rebuttal by all interested parties.
Why Proper Estate Planning Still Matters
Section 21.1(1) is not a substitute for a properly executed will. It is a litigation tool, often expensive, slow, and emotionally corrosive, used to rescue intentions when formalities are not met. From a risk-management standpoint, proper estate planning remains the simplest way to reduce evidentiary disputes, ensure executor authority is clear, and avoid court-driven outcomes.
Does this sound familiar?
If a loved one has passed away and left behind incomplete, unclear, or informal estate documents, such as notes, emails, unsigned drafts, or mixed versions of a will, it is important to act quickly. If you are facing uncertainty about what documents truly reflect your loved one’s wishes, contact our estate litigation team. We can help you take the right preservation steps, assess the legal options, and guide you through the process.
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