In the recent case of Lortie v Lortie, 2023 ONSC 4404 the Ontario Superior Court of Justice granted an unopposed application for an order that a will in which the witnesses signed or initialed all the pages of the will in the presence of the testator except for the last, which was accidentally left unsigned, did in fact meet the requirements for formal validity under s. 4(2) of the Succession Law Reform Act (“SLRA”). The lack of witness signatures or initials on the last page of the will was only discovered following the testator’s death. The Court looked at whether the witnesses’ initials on every page except the last was sufficient attestation for formal validity, and whether or not the witnesses’ subscriptions needed to be placed at the end of the will.
As per s. 21.1 of the SLRA, the Superior Court of Justice can declare a will to be valid even if it was not properly executed so long as the Court is satisfied that it sets out the deceased’s testamentary intentions. While there are several recent cases which discuss s. 21.1, the Court in this case determined that the will was valid without needing to resort to this provision.
The Court discussed the requirements of formal validity of a will, set out in s. 4(2) of the SLRA. Those requirements are that 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 Court noted that unlike s. 4(2)(a) of the SLRA which requires that the testator sign the will “at the end”, section 4(2)(c) of the SLRA does not specify where the witnesses to a will are to subscribe the will. The Court also noted that “where witnesses are required by this section, no form of attestation is necessary.”
The Court looked to the case of Connor Estate v. Worthing, a British Columbia case which considered legislation substantially identical to s. 4(2) of the SLRA. The Court in that case found that while the will must be signed by the testator in order to be valid, and must have two witnesses “subscribe” the will, had the legislature intended the same requirements apply to both testator and witnesses, they would have written the legislation to make it so. Instead, they used “sign” for the requirements of a testator, and “subscribe” for the requirements of a witness, and the use of the two words was found to imply a different intention for each role’s requirements. The Court in Lortie v Lortie adopted this reasoning in order to determine that the witnesses’ initials on the will sufficed as subscription within the meaning of s. 4(2) of the SLRA.
As such, the witnesses’ initialling of every page except the last was found to qualify as the witness having “subscribed the will in the presence of the testator.”