Have Technicalities Trumped Substance in Wills and Estates?

Our law values the right of the individual to decide what happens to their money after they die.  It protects that right by ensuring that certain rules are followed when a person (the “Testator”) signs a Will.  These rules are designed to avoid fraud.  But what happens if those rules are not followed, but there is a virtual certainty that the Will in question reflects the wishes of the testator?

One of my favourite estate books is Feeney’s Canadian Law of Wills.¹ The learned author makes the following observation, “Over time it has been suggested by analysts that the “formalities” have become ends in themselves and, consequently, the courts, by insisting on strict compliance with such formalities, have defeated the underlying purpose of the process of will-making: formalism has thwarted the intentions of numerous will-makers.”²

Imagine this scenario.  Jimmy goes to his lawyer to make a will.  The lawyer drafts the will which accurately reflects Jimmy’s desire to give all his money to the Hospital for Sick Children.  Jimmy’s only living relative is some second cousin whom he never met.  If the Will is valid Sick Kids gets the money.  If not, there is an intestacy which results in some distant relative who Jimmy does not even know getting the money³.

When Jimmy goes to his lawyer’s office and starts signing the Will, the lawyer has his back to Jimmy and does not see Jimmy sign the Will.  After Jimmy signs, the lawyer and his secretary sign as witnesses. Arguably, if Ontario requires strict compliance with the formalities of execution then Jimmy’s will is invalid, the hospital gets nothing and Jimmy’s second cousin gets a windfall.  So what is the law?

Section 4 ⁴ of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) ⁵ sets out the rules about how a Will is supposed to be signed.  These rules are often referred to as the “Formalities of Execution”.   This is what section 4 says about the obligation of a will to be witnessed.

“Execution

4.(1)Subject to sections 5 and 6, a will is not valid unless,

(a) …;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.”

So now that you see the legislation, do you think that the fact that Jimmy’s lawyer did not see the Will being signed will invalidate the Will?  Is this a technicality that judges would ignore or would a court throw out this will⁶?

Some provinces are not so strict with these rules. To them it is of paramount importance that the genuine wishes of the testator be followed even if it means that the rules are only substantially complied with. These provinces have passed laws giving judges the discretion to dispense with the formalities of execution under certain circumstances.  For these provinces, the key is that the Will must be in accordance with the testator’s wishes. Examples of such legislation include the Saskatchewan Wills Act, Manitoba Wills Act, and Nova Scotia.⁷ But, what about Ontario?

In Ontario the trend seems to be strict compliance with the formalities of execution.⁸

For now, there is no legislative authority in Ontario which allows a document that is in substantial compliance with the requirements of section 4 of the SLRA to be a valid testamentary document.⁹ 2620, 42 ETR (3d) (SCJ); also see Brian A. Schnurr, Estate Litigation, 2nd ed., chapter 18.13.]

So how would an Ontario court deal with Jimmy’s scenario?  It is important to remember that every case has its own set of facts.  The smallest detail may make a big difference to a judge¹⁰. Let’s consider the facts in the case of Zerbinati v. Zerbinati.¹¹

A buddy of Valentino went on his computer and made a Will and gave it to him.  No lawyers were involved.   Just as Valentino was signing the will another friend (Ken) walked into the room at exactly the same time and agreed to sign as a witness.    Ken never saw Valentino sign the will, but it was obvious that Valentino had done so.  So what’s the problem?

If the Valentino’s Will was set aside his three brothers would inherit all of Valentino’s money.  They pointed to section 4 of the SLRA and said that Valentino had to sign his will in the presence of the witnesses including Ken or failing that for Valentino to have acknowledged that he signed the will in the presence of Ken.  Ken never saw Valentino sign the Will.  Valentino never told Ken – he just signed the Will.  The beneficiary of the Will wanted the will to be declared valid and said in this type of situation there was “substantial compliance”.  The judge disagreed with both of them and found the will to be valid and that it was done in strict compliance with the formalities of execution?  So why did the court think there was strict compliance?

Another witness said Valentino signed the Will in Ken’s presence. According to the judge, just because Ken said that he did not see Valentino sign the will does not mean that Valentino did not sign the will.  Ken just did not see the signature applied. The two statements are not inconsistent. As well, the judge said that you can still comply with the formalities of execution in another way.

The SLRA provides that for a will to be valid the testator (Valentino) could acknowledge that he signed the will in the presence of the witnesses. The judge expanded what “acknowledge” means. According to the judge,

“…acknowledgment of the will occurs when there is something in the language used or the conduct of the parties that amounted to an acknowledgment by the testator of his signature. It is not necessary, however, that the testator should say to the witness ‘this is my signature’ for when the paper bearing his signature is put before two persons who are asked by him or in his presence by someone else, to sign as witnesses that is sufficient” (Hull: Probate Practice (4th ed.) page 65.) While the evidence is sketchy the balance of probabilities is in favour of the proposition that Mr. Biniaris (Ken) was presented with a paper bearing the signature of the testator and in his presence was asked to sign as a witness. I accept that section 4 (b) has been complied with and that the testator made his signature in the presence of both attesting witnesses.”

Some might applaud the judge for toeing the line on the idea of strict compliance with the formalities of execution while still ensuring that Valentino’s testamentary wishes were fulfilled.  Others might point out that, notwithstanding this judge’s creative solution, the concern that strict compliance with those formalities will, more often than not, thwart the will-maker’s wishes. Just because this judge was creative in this case does not mean that another judge would have come to the same decision.

The court’s decision could have gone a number of ways in response to the facts in Zerbinati. Since the witness entered the scene “simultaneously” to the signing, the court could have applied a narrower reading of section 4 of the SLRA, and refused to uphold the will on the basis of failing to comply with section 4(b). If the court had chosen this path, the result would have been that the clear wishes of the testator would have been ignored on the basis of a discrete technicality. Instead, the court chose to accept that the will was signed in the presence of the witness, even if the witness did not see the signature applied.¹²

To help provide you with a flavour of what people thought Ontario’s law on this issue had been, I refer you to an excellent text often referred to by Estate Judges, including the judge hearing Zerbinati.  The book is Macdonell, Sheard and Hull on Probate Practice, 4th Ed. Several of its authors were appointed to the bench and the late Rodney Hull, as well as Ian Hull, are both highly regarded estate litigators and well respected authors. The judge referred to page 65.  I now refer the reader to an excerpt from page 67:

“… the witnesses must also subscribe the will in the presence of the testator.  This means in his visual presence in the sense that he either saw or could have seen, them sign.  Therefore, if the testator is unable to move without assistance and has his face turned from the witness so that it is out of his power to see them if he so wished, the attestation is insufficient.”

Our point is that one can easily imagine a different judge on a different day coming to a different conclusion with the same facts as Zerbinati.

We cannot help but wonder if cases such as Zerbinati, Sisson v Park Street Baptist Church (1999), 24 E.T.R. (2d) (Ont. Gen Div.) and Malichan Estate, 6 E.T.R. (2d) 217, (Ont. Gen. Div.)¹³ represent a trend where some judges are looking for ways to circumvent the requirement for strict compliance in order to ensure fulfillment of  the testator’s unequivocal wishes. In our view, this issue will be resolved only when either Ontario’s legislature or the Ontario Court of Appeal deal with the issue.