In estate litigation, the way documents are presented and preserved is just as important as their substantive content. One issue that occasionally arises is the placement of exhibit stamps on Wills. Traditionally, exhibit stamps are placed on the back of documents, but in recent years, some have questioned whether the front of the document might be a better location.
As part of an Application for a Certificate of Appointment of Estate Trustee, if there is a Will, either an Affidavit of Execution of the Will (Form 74D), an Affidavit as to the Condition of the Will (Form 74E), or an Affidavit explaining the reason that a Form 74D or 74E cannot be filed, must be made. In the case of a holograph Will, an Affidavit Attesting to the Handwriting and Signature of a Holograph Will (Form 74F) must accompany the Application for a Certificate of Appointment. Pursuant to Rule to 74.04 (1)(d) of the Rules of Civil Procedure, the original of the Will must be attached and marked as an exhibit to one of these Affidavits.
The Estates Manual provides:
“There is no legislative provision or court rule directing the placement of an exhibit stamp for a Will. An exhibit stamp can be placed on the back of the Will (ideally on the back of the signing page but it can be placed on the back of another page) or it can be placed on a separate sheet of paper that is attached before the Will (a sheet that is placed before the Will which is attached to the Affidavit Form 74D, 74D or 74F).”
Something that eState Planner is doing is starting to put the exhibit stamp on the front page of the signing page of a Will. There are a number of reasons for this, some of them being:
Immediate Identification: The document can be quickly recognized as an exhibit in a file with multiple records.
Organization: Courts and lawyers may find it easier to sort and retrieve front-stamped documents.
Professional Presentation: A neatly applied stamp can signal order and thoroughness.
While some may be skeptical of this new innovation, the Estates Manual further states:
“An application should not be rejected on the sole basis that the exhibit stamp is not on the back of the Will. If the Will is not marked as an exhibit to the Affidavit or it is marked as an exhibit but you have concerns that the Will is not a proper exhibit, direct the application to a judge”.
Recently, the following has been confirmed by the Group Leader of the Ministry of the Attorney General | Court Services Division, Superior Court of Justice, Bankruptcy, Estates & Commercial Office:
[I]f the exhibit stamp is on the signing page of the Will/Codicil then when reviewing the document, the registrar will examine whether the stamp covers any portion of the text or signatures of the Will to the point of obscuring the text/signature/stamp. If it does, then it may be an issue that needs to be rectified.
Basically, it does not matter where the [e]xhibit stamp has been placed but the lawyer must make sure that it does not cover any text and signature and/or other stamps.
For lawyers, the decision to stamp the front of a Will requires caution. While there are no explicit legal prohibitions against front placement, practitioners must ensure that nothing compromises the Will’s validity.
Thank you for reading and have a great day.
Ian Hull & Zahra Panju