Due Execution of Wills
The legislation in Ontario requires that (aside from a Holograph Will or a Will of a member of the Canadian Forces on active service) a Will must be signed at its end by the testator or by some other person in his/her presence and by his/her direction, the signature must be made in the presence of two attesting witnesses present at the same time, and two or more of the attesting witnesses must also subscribe the Will in the presence of the testator.
As in most cases these requirements are adhered to, this is not the most common ground upon which to support one’s challenge to the validity of a Will. However, two English cases contain interesting commentary of the subject.
In Esterhuizen v. Allied Dunbar Assurance PLC  2 FLR 668, the lawyer attended at the testator’s house three times to attempt to get the Will signed, but was unsuccessful. The testator was extremely reclusive, and could not organize to have any witnesses to the Will on hand. The Court found that a solicitor owes a duty to take proper care in advising the testator as to the formalities of execution, and a lawyer needs to do more than leave written instructions for the client. Rather, the Court stated that a lawyer ought to invite the client to his office to sign the Will there or visit the client with a staff member at home to have it executed.
In Gray v. Richards Butler  WTLR 143, the client was departing the next day for a holiday and the lawyer met her at a restaurant that night to attend to the execution of the Will. However, as the client was enjoying the evening out and did not wish to sign at that moment, he left the Will with a set of standard instructions for her to execute and return to him. The Will was returned with deficiencies, including signatures in the wrong place, and the witnesses were not both present at the same time for the signing. The testator was treated as having assumed responsibility for the errors given that the solicitor made what the court viewed to be reasonable efforts to ensure due execution was observed.
While these cases have very different outcomes, in my view they serve as reminders that the best practice for drafting lawyers in order to make due execution a non-issue is to have the Will signing process entirely supervised and presided over by them.
For more on this topic, David Smith’s paper and presentation given at our recent Hull & Hull LLP breakfast series will be posted on our webiste.
Thanks for reading,
Natalia Angelini – Click here for more information on Natalia Angelini.