When someone leaves a will, it is easy to assume that if it was witnessed by a beneficiary, the gift to that beneficiary fails. But that is not always the case. Two court decisions, one from Saskatchewan and one from Ontario, show how judges are now empowered to look past technical mistakes if there is clear evidence of fixed and final testamentary disposition.
In Re Warren Estate, a 1993 decision of the Saskatchewan Court of Queen’s Bench (as then was), Mr. Warren left everything to his two sisters. They also happened to be the only two people who witnessed the signing of his will. That raised concerns because the law usually cancels out gifts made to witnesses unless it is proven that the witness did not pressure or influence the person making the will. In this case, the judge considered the broader context. After his wife passed away, Mr. Warren reconnected with his sisters. They cared for him in his final years, and there was no indication of coercion. The judge accepted that neither sister had read the contents of the will when they witnessed it. Although there was a minor issue with how one of them signed, the court still upheld the will because it clearly reflected Mr. Warren’s true wishes.
An Ontario case reached a similar conclusion but also dealt with section 21.1 of the Succession Law Reform Act, which my colleague blogged about on May 21, 2024. In Re O’Neill Estate, a 2024 decision of the Ontario Superior Court of Justice, a woman signed her will in March 2023, just two months before she died. Her brother helped her prepare the will and saw her sign it, but he did not sign as a witness because he was a beneficiary. Two others signed the will, but they were not present when she did. The will therefore did not meet Ontario’s formal signing requirements. However, section 21.1 allows the court to validate a will that does not meet the technical rules, as long as there is clear evidence of the deceased’s intentions. In this case, the judge was satisfied the document reflected the woman’s true wishes. All other beneficiaries either consented or did not object.
Thanks for reading.