As we emerge from the Covid pandemic era, new symptoms and side effects of Covid are becoming increasingly apparent. When it comes to estate planning, the effects of irregularly signed documents are becoming a contentious matter.

When the March 2020 lockdowns took place, practitioners developed innovative solutions to enable wills to be executed without the traditional in-person, two witness meeting.

In Ontario, for a Will to be considered valid, it must be created by a testator who is over the age of 18, of sound mind and in the presence of two witnesses, who then sign confirming they witnessed the testator’s signature.

Re Estate of Darlene Edwards 2022 ONSC 3646

In Re Estate of Darlene Edwards, estate litigation arose when a witness recanted earlier statements that she had witnessed the testator’s signature. Ms. Edwards, the testator, found out she had terminal cancer and instructed a paralegal to draft her Will, who then emailed it to her clerk to have it printed so it can be witnessed and signed.  Ms. Edwards instructed her employee, Tami, to print out the document. Ms. Edwards’ daughter, Christina, then drove her to her office, for a meeting outside the office between Ms. Edwards, Tami and a third employee. The daughter watched as Tami give Ms. Edwards the printed documents, Ms. Edwards signed them, then Tami signed and finally the other employee signed.

Ms. Edwards died in November 2020. Soon after, Christina, also the named executor of the estate, approached the witnesses to the Will to provide an affidavit of execution. The clerk, Tami, agreed to provide an affidavit. Christina wound up her mother’s business, terminated the clerk and paid her a generous severance pay. When Christina later followed up on the affidavit of execution, Tami responded that she would not sign until a complaint she had with respect to her severance pay was resolved.

Tami testified before the court that Ms. Edwards, not Tami, brought the signature pages to the meeting, that she had not seen Ms. Edwards sign, and that she did not know what she was signing. She said she signed as a witness because the testator was her boss and asked her to do so.

The Court summarily found that the Will was properly executed. Christina’s testimony was “plausible and coherent,” and that Tami had changed her version of the events as she was unhappy with the amount of severance pay she received. The Court found that Tami would not have signed the document blindly, and in signing, had attested to having done so in the presence of the testator.

Thanks for reading,

Sara Moledina