During the pandemic, new laws were implemented in many jurisdictions, including Ontario, so that wills could be executed during virtual meetings using online video platforms like Zoom. The law had to evolve due to public health measures that prevented people from being in close proximity to each other. Now that the law has permitted wills to be witnessed virtually for several years, we are beginning to see how the courts are interpretingthe requisite formalities for wills executed remotely.
One interesting case on point is Re Curtis [2022] VSC 621. Hailed as a landmark decision, in Re Curtis the Supreme Court of Victoria considered whether a will that was signed and witnessed electronically complied with that jurisdiction’s remote execution procedure. The court held that the will failed to comply because the witnesses could not actually see the testator signing the documentduring the Zoom session. The recording of the virtual meeting only showed the testator sitting in front of a laptop – the laptop screen, which the testator signed using DocuSign, was not actually visible. The recording also did not show the deceased’s image when the witnesses signed the will, and there was no audible confirmation that the testator could see them sign it. To comply with the law in Victoria, all of the parties who signed the will should have been able to “clearly see” the signatures being made or drawn.
While the court ultimately saved the will in Re Curtis by using its substantial compliance power, this case raises an interesting question – could the courts in Ontario conclude that a will signed remotely is invalid because thewitnesses could not see the testator’s signature, or did not actually see the testator signing the will?
The Succession Law Reform Act, R.S.O. 1990, c S.26 (the “SLRA”) sets out the requirements for witnessing a will in Ontario, with subsection 4(2) expressly stating that “a will is not valid unless … the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time”. In other words, the law does not require the witnesses to a will to see the testator sign the will, so long as the testator acknowledges his or her signature. Subsection 4(3) goes on to confirm that a will signed or acknowledged using audio-visual communication technology will also be valid. It seems very unlikely that a will executed in Ontario during a virtual meeting, or even in person, would fail to meet the witnessing requirements simply because the witnesses did not see the testator sign it.
However, it merits noting that a will could be deemed invalid if the witnesses to that instrument could not actually see the testator’s signature when they signed the will,even if the testator did acknowledge signing the will. This issue was explored by the Supreme Court of Canada in McNeil v Cullen, 1905 CanLII 67 (SCC), a case in which the witnesses did not see the testator sign the will and also did not see the testator’s signature on the will. The Supreme Court held that a testator’s acknowledgment will be insufficient “unless, at the time, the witnesses either saw or might have seen the testator’s signature.” The impact of the witnesses to a will not being able to see the testator’s signature was also addressed in a more recent Alberta case, Brandrick v Cockle, 1997 CanLII 14777 (QB), where the court held that “for a Will to be acknowledged, at very least, a signature must be visible to the witnesses if they look for one.” Justice Ritter went on to add: “How one can acknowledge their signature in the face of a positive act preventing that signature from being seen escapes me.”
There appears to be no case law yet addressing the validity of a will where the testator’s signature was not visible to the witnesses when they signed the will because the parties were in each other’s presence virtually. If such a will is invalid, the Superior Court of Justice could save it using section 21.1 of the SLRA, as this provision permits the court to submit a will to probate “that was not properly executed or made”. However, given that the application of section 21.1 is a matter of discretion and there is no case law yet on point, it may be a good idea to ensure that when a will is executed virtually that the testator actually shows the signed will to the witnesses, to ensure that the instrument is valid.
Thank you for reading, and have a great day.