The recent decision of Riddle v Nielsen, as reported here, serves as a good reminder to have your estate plan in place before you travel. In this case, the testator did not complete the task. He hired a lawyer and provided will instructions prior to going away on vacation with his common law spouse. However, the will was not signed before the trip. While on holiday, the testator suffered a severe stroke, heart attack and seizure, and underwent two surgeries. He was ultimately transported to a hospital back home in Kingston, Ontario. While there, his will and powers of attorney were purportedly signed. Sadly, the testator died in hospital a few weeks later.

One of the testator’s children brought an application challenging the validity of the will. The testator’s common law spouse defended the challenge.

Based upon the medical evidence before the court, the Judge could not conclude that the legible signature on the will was that of the testator. Her Honour relied on the hospital notes and records, which conflicted with the evidence of the common law spouse and attesting witnesses regarding the positioning of the testator in his hospital bed, which positioning would have impacted his ability to sign the will. Further, the Judge accepted the expert evidence proffered by the objector that, given the severity of the testator’s stroke, his impaired handwriting, and concerns about delirium, it was impossible for him to have signed the will and powers of attorney so clearly.

The will was declared invalid and cost submissions are now to be addressed. Though the common law spouse was unsuccessful in the first instance, it remains to be seen whether she will pursue her alleged entitlements by way of an appeal or otherwise.

Thanks for reading and have a great day,

Natalia Angelini