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Does Expert Evidence Impact the Onus of Proving a Will’s Validity?

A review of Bayford v. Boese, 2021 ONCA 442

Overview

Persons seeking to prove the validity of a will (i.e. the “propounders”) bear the onus of proving that the will was formally executed.1 The formal requirements are set out in section 4(2) of Ontario’s Succession Law Reform Act, which states that, for a will to be valid, the testator must make or acknowledge his signature on the will in the presence of two or more attesting witnesses present at the same time, and two or more attesting witnesses must subscribe the will in the presence of the testator.2

The Court of Appeal’s decision in Bayford v. Boese, 2021 ONCA 442 is an important reminder that, where the authenticity of the testator’s or witnesses’ signatures are in doubt, proving the validity of the will will require more than simply producing a copy of a signed will. Rather, the propounder will be required to lead evidence that rebuts evidence indicating that the will was not formally executed by the testator and two witnesses.

Facts

Bruce Boese owned a farm.3 His long-time friend Brenda helped operate the farm for two decades, until Bruce died.4

Bruce executed a will in 1992 that named his parents as the sole beneficiaries of his estate.5 Since they predeceased him, Bruce’s estate would pass through intestacy to his living brother, Brian, and the two daughters of his deceased sister (i.e. his nieces), unless there was another will with living beneficiaries.6

The discovery of a draft Will prepared by Bruce’s lawyer in 2013 complicated the intestate distribution of Bruce’s estate.  There were two versions of that 2013 will, and neither originals were produced at trial. The first version only included Bruce’s signature with no witness signatures (“Version 1”), whereas the second version included Bruce’s signature and those of the two witnesses (“Version 2”). Both versions appointed Brenda as the estate trustee and left her the farm property. Neither the original of Version 1 or Version 2 were produced at trial (only copies).

The differences between Version 1 and Version 2 are critical. Presumptively, Version 2 would constitute a formally executed will, since both the testator’s and two witnesses’ signatures were present, while Version 1 would be invalid since the witnesses’ signatures were missing. For Brenda, this meant that she needed to prove the validity of Version 2 in order to get the farm.

Brian challenged the validity of the 2013 Will on the allegation that Brenda created Version 2, with the witness’s assistance, after Bruce’s death, and after she discovered that Version 1 was not validly executed.7 Brenda’s evidence was that, while she initially only found Version 1 at the time of Bruce’s death, she discovered Version 2 a few weeks later after running into one of two witnesses to the 2013 Will.8

During trial, Brian produced evidence from a handwriting expert to conclude that the deceased’s signature that appeared in Version 1 and Version 2 are the same, with one signature being a copy of the other.9

Despite the expert’s findings, the trial judge declared that the deceased’s will had been validly executed in accordance with s. 4 of the Succession Law Reform Act. Brian appealed the decision, on the basis that the trial judge erred in finding that Brenda had discharged her burden to prove the formal validity of the 2013 Will.10

The Court of Appeal found that the trial judge misapprehended the importance of the expert’s evidence, which was central to the determination of whether the deceased signed the 2013 Will before two attesting witnesses, in accordance with the rules of formality for executing wills.11 Because of the trial judge’s misapprehension of the evidence, the Court of Appeal held that the trial judge erred in finding that Brenda met the onus of proving the formal validity of the deceased’s will.12

The Court of Appeal made the following logical conclusion: The expert found that the deceased’s signature on Versions 1 and 2 were exact copies of each other, and that no one signs the exact way twice.13 The evidence established that the original of Version 1, was brought to the drafting solicitor’s office.14 This evidence supported the inference that Version 1 was converted into Version 2 when the two witnesses signed the Will, after the deceased’s death, contrary to section 4(2) of the Succession Law Reform Act. There was no evidence to rebut the expert’s findings, and thus Brenda had failed to meet her onus to prove the formal validity of Version 2 of the 2013 Will.

Significance

The Bayford decision reminds litigants that proving the formal validity of a will is not always as simple as producing a signed will. Under the traditional model of law still in force, if expert evidence indicates that the last will and testament was not properly witnessed, the propounder of the Will must lead evidence to overcome the expert’s findings, otherwise it will fail to overcome the burden in proving the formal validity of the will.

The field will change significantly on January 1, 2022 with the coming into force of Section 21.1 of the Succession Law Reform Act, which states:

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

[Emphasis added.]

In a case like Bayford, it may be that Version 1 of Bruce’s will would be admitted to probate under the new model of formal validity of wills. Had Section 21.1 of the Succession Law Reform Act been in effect at the time that the applicant sought to propound the 2013 Will, a court may have found that the 2013 Will was valid, despite the lack of witness signatures.

 

Footnotes
  1.   Vout v. Hay, (1995) 2 S.C.R. 876, at p. 887. The revisions to the Succession Law Reform Act expected to come into force on January 1, 2021 will transform Ontario from a “strict compliance” to a “substantial compliance” jurisdiction; see Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4, Sched. 9, s. 5.
     
  2.   Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 4(2).
     
  3.   Bayford v. Boese, 2021 ONCA 442 at para 3.
     
  4.   Bayford v. Boese, 2021 ONCA 442 at para 3.
     
  5.   Bayford v. Boese, 2021 ONCA 442 at para 3.
     
  6.   Bayford v. Boese, 2021 ONCA 442 at para 3.
     
  7.   Bayford v. Boese, 2021 ONCA 442 at para 9.
     
  8.   Bayford v. Boese, 2021 ONCA 442 at para 8.
     
  9.   Bayford v. Boese, 2021 ONCA 442 at para 24.
     
  10.   Bayford v. Boese, 2021 ONCA 442 at para 1.
     
  11.   Bayford v. Boese, 2021 ONCA 442 at para. 32.
     
  12.   Bayford v. Boese, 2021 ONCA 442 at para. 45.
     
  13.   Bayford v. Boese, 2021 ONCA 442 at para. 34.
     
  14.   Bayford v. Boese, 2021 ONCA 442 at para. 34.
     

Peter Neufeld

The author of this blog is Peter Neufeld. Peter is an associate at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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