DUE EXECUTION OF A WILL – PART II
Continuing with our discussion of the mechanics and technical aspects of execution of a will, I now turn to the signing and witnessing of the will.
Section 4(1) of the Succession Law Reform Act *(“SLRA”) provides that, except in the case of the will of a member of forces on active service, or in the case of a holograph will, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(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. The requirement that the will be “signed” has been loosely interpreted, with the intention of the deceased being determinative. Courts have accepted wills where:
- the will bears the signature of the testator;
- the will bears part of the signature of the testator;
- the will bears the initials of the testator;
- the will bears a mark made by the testator intended to represent the testator’s name (even in situations where the testator is able to write his name, or in situations where the mark of a physically handicapped testator is guided by someone else;
- the will is impressed with the stamp of the testator;
- the testator signs the will using an assumed name;
- the testator signs the will using her title (eg. “Mother”);
- the testator signs the will using her name from a previous marriage;
- the will is signed by another person at the instance of the testator (signature by an amanuensis)
The onus of proving due execution is on those propounding the will. The burden is on the propounder on the balance of probabilities. The position of the signature is important. In addition to the reference in s. 4(1) that the will be signed “at its end”, s. 7 of the SLRA also impacts on the validity of the will and the position of the signature.
Essentially, the signature must be at the end of the will. While a will is not rendered invalid if it is not signed at its end, but rather, at some other place, no effect will be given to dispositions underneath or following the signature.
Case law applying this section (or the equivalent section in other provinces) is hard to reconcile. What emerges is that the court will strive to uphold the validity of the will that has a signature at a point other than at its end if at all possible. Courts will attempt to read the pages of a will in another order, or apply the doctrine of incorporation by reference in order to validate the will. In some cases, however, this is simply not possible.
A signature on the envelope of the will has been accepted as a valid signature where the court found that the circumstances precluded fraud, the envelope had a close connection with the sheet of paper, both documents were written on the same occasion and in the presence of the attesting witnesses, and the safekeeping of the documents showed that they were genuine. Section 7 of the SLRA specifically applies to all wills, whether holograph or not.
Tornorrow, I will address the requirements surrounding the witnessing of the will.
Have a great day. Paul Trudelle ——–