When Can A Will Be Signed By Someone Other Than The Testator?

August 10, 2016 Suzana Popovic-Montag Capacity, Health / Medical, Wills Tags: , , , , , 0 Comments

We have written before on the formal requirements of a will in Ontario, under the Succession Law Reform Act. One requirement is that a will is signed “by the testator or by some other person in his or her presence and by his or her direction” (s4(1)(a)). This section indicates that a will may be signed by an agent, or a signature by amanuensis. It also raises the important question: in what  circumstances would it be appropriate to have a third party sign a will on behalf
of the testator?

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Signing a will via amanuensis is most appropriate where the testator lacks physical capacity to sign on his or her
own behalf. This is not to be confused with mental capacity:
a testator must always have the capacity to consider the extent and nature of his or her property and to consider the claims of potential beneficiaries. Moreover, the testator must be able to see and be mentally aware of his or her amanuensis (see: Peden v. Abraham, [1912] 3 WWR 265).

A person who does not have the physical capacity to write his or her name may also be unable to hold or read their will. In that case, the will must be read aloud so the testator can have knowledge of its contents and approve them. In the case of a very feeble person, it may be a good idea to keep the will as short as possible, so the testator can remain alert while it is read in its entirety.

If the testator is mentally capable but feeble, in pain, or otherwise unable to sign the document, an amanuensis may be used. In Clark, In the Goods of (1839), 2 Curt 329, the testator was too ill to hold a pen, so the will was signed on his behalf by the parish vicar and the will was held to be valid. A will signed by amanuensis was also allowed in a case where the testator did not know how to write (Re Deeley & Green, [1930] 1 DLR 603). In the case of a testator with low literacy, the testator may also make a mark of some kind, such as the classic X.

Thank you for reading.

Suzana Popovic-Montag

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