Can an Unsigned Will be Probated?

Smith v. Bechtel Explains When a Court Will NOT Validate an Unsigned Will. Compared with Grattan v. Grattan

Ontario’s introduction of section 21.1 of the Succession Law Reform Act (“SLRA”) in 2022 gave courts the power to validate wills that were not properly executed. This provision, often referred to as the “substantial compliance” rule, was designed to prevent unjust outcomes where a testator’s intentions were clear but technical formalities were not completed.

However, two recent Ontario cases—Smith v. Bechtel et al, 2026 ONSC 975, and Grattan v. Grattan (2023, unreported)—demonstrate that courts will not validate unsigned wills unless there is clear evidence the document reflects the testator’s final and settled intentions.

Although both cases involved draft wills prepared by lawyers shortly before death, the courts reached opposite outcomes. The difference turned on one key question: did the draft will represent the testator’s fixed and final testamentary intention?

The Legal Framework: Section 21.1 of the SLRA

Section 21.1 allows the court to validate a document that was not properly executed if the court is satisfied that it sets out the deceased’s testamentary intentions.

This is a fact-specific inquiry. Courts are not being asked whether the deceased intended to make a will—they are being asked whether the specific document reflects their final and deliberate intentions.

The distinction is critical.

Smith v. Bechtel: Draft Will Not Validated

In Smith v. Bechtel, the deceased met with a lawyer and gave instructions for a will that would leave his estate primarily to a close friend, with gifts to others. The lawyer prepared a draft will and sent it to the deceased, along with a letter asking him to review the draft and suggest any changes before a signing appointment scheduled several weeks later.

The deceased died suddenly before confirming its contents to the lawyer or signing the draft.

The Court refused to validate the draft will, identifying several key concerns:

• There was no evidence the deceased had reviewed the draft will.

• The lawyer had explicitly invited the deceased to suggest changes.

• The signing appointment had not yet occurred.

• There were some discrepancies between the draft will and the deceased’s handwritten notes.

Muszynski J. relied on several more recent estates law cases to emphasize that testamentary intention requires a “deliberate or fixed and final expression of intention.” Because the draft remained subject to review and possible revision, Her Honour could not conclude it reflected the deceased’s final intentions.

As a result, the estate passed on intestacy to the deceased’s estranged siblings—contrary to his apparent wishes.

Grattan v. Grattan: Draft Will Validated

In contrast, the Court reached the opposite conclusion in Grattan v. Grattan.

In that case, the deceased met with a lawyer who prepared a draft will and emailed it to her for review. The deceased reviewed the draft, made minor changes directly to the document, and returned it to the lawyer. The revised draft reflected her final instructions.

She died 15 days later before signing the will.

The Court validated the draft will under section 21.1.

The critical difference was evidence of review and approval. By reviewing the draft and making changes, the deceased demonstrated that the document reflected her settled and final testamentary intentions.

The Court was satisfied that the draft was not merely a proposal, but the completed expression of her wishes.

Key Differences Between the Cases

The contrasting outcomes in Bechtel and Grattan highlight several key factors courts consider:

In Grattan, the deceased reviewed and revised the draft will.  In Bechtel, there was no evidence the deceased reviewed the draft at all. This was the most important distinction.

In Grattan, the deceased’s revisions confirmed the draft reflected her final intentions. In Bechtel, the draft remained subject to review and possible change. The court cannot assume approval—it must be proven.

In Grattan, the will was substantively complete.  In Bechtel, the will was still part of an ongoing drafting process. The court will not complete unfinished estate planning.

In Grattan, the documentary evidence clearly showed final testamentary intention. In Bechtel, the evidence in the form of his handwritten notes left open the possibility that the deceased might have changed the draft. Courts require clear and convincing evidence of final intention.

Lessons for Clients

These cases reinforce a simple but critical lesson: a will has no legal effect until it is properly signed. Even clear instructions to a lawyer may not be enough.  Unexpected illness or death can occur at any time. Delaying execution creates real risk that your wishes will not be carried out.

Lessons for Lawyers

These decisions also carry important risk management implications for estate practitioners:

• Minimize delays between instruction and execution

• Confirm client approval of draft wills in writing

• Prioritize execution for elderly or medically vulnerable clients

• Document review and approval carefully

The strongest protection—for both client and lawyer—is prompt and proper execution.

Conclusion

Section 21.1 of the SLRA provides an important safety net, but it is not a substitute for proper execution.

The difference between Bechtel and Grattan illustrates that courts will validate unsigned wills only where there is clear evidence the document reflects the testator’s final and settled intentions.

Where that evidence is lacking, even carefully prepared draft wills may be ineffective—and estates may pass in ways the deceased never intended.