A recent Ontario court decision rejected allegations that a will was invalid on the basis that the testator’s signature was forged and the witnesses were not present at the signing.
The testator died in June 2015. At the time of his death, he was the sole owner of the 22-acre farm in Ontario that he inherited from his parents. The testator had never married and had no children. For two decades prior to his death, he was assisted in the operation of the farm by a female friend.
The female friend sought to prove a will said to have been executed by the testator in August 2013 (“the 2013 Will”).
Under the 2013 Will, the farm property was to be transferred to the female friend and the residue of his estate was to be divided equally between his brother’s two children and his deceased sister’s two children.
The testator’s brother challenged the 2013 Will. He did not dispute that the 2013 Will reflected the testamentary instructions given by the testator to his lawyer, nor did he allege that it was procured by undue influence or by coercion. He did not raise the testator’s capacity to make a will.
Rather, the brother challenged the 2013 Will on two grounds. First, he alleged that the testator did not sign the 2013 Will. Second, the brother alleged that, if the signature on the 2013 Will did in fact belong to the testator, then he did not sign it in the presence of the two witnesses whose signatures appeared as witnesses to the testator’s signature.
The brother asserted that the 2013 Will did not comply with the provisions of the Succession Law Reform Act (“SLRA”), governing the execution of a will.
The brother accused the female friend of finding a copy of the 2013 Will after the testator’s death that had been signed but not witnessed. He alleged that she then colluded, connived, or conspired with the two witnesses to assert that they witnessed it being signed by the testator. In the alternative, the brother alleged that the testator’s signature was forged on the 2013 Will.
The court began by outlining the relevant legislation provision. Section 4(1) of the SLRA sets out three requirements that must be met for a will to be valid. Those requirements are that:
- at its end [the will] is signed by the testator or by some other person in his or her presence and by his or her direction;
- the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
- two or more of the attesting witnesses subscribe the will in the presence of the testator.
The court then explained that it is theperson who proposes that a will is authentic or valid who has the burden to establish on a balance of probabilities due execution, the testator’s knowledge, and approval as to the contents of the will, and testamentary capacity.
Given the nature of the brother’s challenges to the validity of the 2013 Will, the court focused on whether the female friend had shown that it was duly executed with the requisite formalities.
The court reviewed the testimony given by the testator’s solicitor, who testified as to the preparation of the 2013 Will; the two witnesses, who testified as to their signature of the Will; and a forensic document examiner, who gaveexpert opinion evidence with respect to the testator’s signature. The court accepted the evidence of the two witnesses with respect to the execution of the 2013 Will. It concluded that the testator had signed the 2013 Will in the presence of the two attesting witnesses, who then signed their names.
As a result, the court found that the female friend had met her onus of establishing that the 2013 Will was signed by the testator in the presence of the two witnesses, and that it had been executed in accordance with the requirements of the SLRA. The court therefore concluded that the 2013 Will was valid and was the testator’s last will and testament.
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