If a will is challenged, the value of evidence from the lawyer who drafted the will and assisted with its execution should not be underestimated. A lawyer’s evidence may be used to help establish testamentary capacity, for example, or knowledge and approval of the contents of the will. Such evidence may also be put before the court in a variety of ways, including: 

• admitting the client file, or parts of that file, into evidence, 

• admitting affidavit evidence sworn by the lawyer, or

• having the lawyer give viva voce evidence. 

A relatively new form of evidence that lawyers can also prepare to help answer a will challenge is making a video recording of the will signing ceremony. Video is unique compared to the other forms of evidence listed above, as it is the only type of evidence that provides the court the ability to directly observe the testator, rather than rely on the observations of a third party. However, counsel should be aware that video may not have the desired effect of confirming the validity of the testator’s will. At least two cases, which will be discussed below, demonstrate that videotaping the will signing process may instead establish that further evidence is needed to determine whether the will is valid. 

First, in Carinci v Carinci, 2023 ONSC 6094, Justice Myers used video of the will-signing ceremony to find that the minimal evidentiary threshold had been met and that the will challenge could proceed. The video in this case established that:

• the testator was confused during the will signing ceremony and was coached by someone off-screen,

• the testator was dishonest when asked if someone else was in the room with her; and

• the lawyer did not ask the testator any open-ended questions to establish the validity of the will. More specifically, the lawyer did not address:

o the testator’s knowledge of the extent of her assets and liabilities, 

o why she treated each of her children differently in her estate plan, or 

o whether the testator had been influenced by the primary beneficiary named in her will, who was living with her when the will was executed.

Justice Myers concluded that “[o]ne comes away from watching the video distinctly uncomfortable about the mother’s knowledge and appreciation of relevant factors on the day of the will signing.”

In another case, Schell Estate (Re), 2018 ABQB 991, the court denied an application for summary dismissal of a will challenge despite being presented with video of the testator signing her final will. Similar to Carinci, the video in this case exhibited “capacity-related confusion” and the court concluded that, without further evidence from the lawyer who assisted the testator, the video was not conclusive of the validity of the will. Justice Mandziuk also noted that the circumstances surrounding the video needed to be addressed, as “[t]here are subtleties and nuances in behaviour that may not be fully captured by the video and audio. The angle, the quality, the view, and other factors related to the physical and technical act of recording can affect the value of the recording as evidence”.

While these cases should not dissuade lawyers from creating videos of will signing ceremonies, they aptly demonstrate that once such video is admitted into evidence, the court may not utilize it as intended. 

Thank you for reading, and have a great day! 

Ian.