Wills are often subject to a rebuttable presumption of due execution. As noted by the Ontario Court of Appeal in Re Laxer, 1963 CanLII 153, it is well settled that this presumption will arise so long as it appears that a will was duly executed in accordance with the statutory formalities. The presumption of due execution can even give rise to a further rebuttable presumption – that the testator knew and approved of their will, and had the necessary testamentary capacity to execute it: see Yen Estate v Chan, 2013 BCCA 423.
Despite these presumptions, it is not always obvious when the propounder of a will ought to call an attesting witness to give viva voce evidence to prove that the will was properly executed. If suspicious circumstances are established by a will challenger, for example, should viva voce evidence be led? Is viva voce evidence required, even if a will appears to comply with the formal requirements of due execution?
It appears that there is no definitive answer to these questions in Ontario, as the courts have not directly addressed all circumstances in which viva voce evidence from an attesting witness will be required. However, case law indicates that the presumption of due execution may not always suffice to prove a will in solemn form.
Calling Viva Voce Evidence When Execution Is in Issue
When the execution of a will goes to the heart of a will challenge, the propounder of the will ought to present oral evidence confirming the will’s due execution, even if the will appears formally compliant. For example, in Reville v Weeks, 2024 ONSC 656, a case where the authenticity of the signature on the testator’s final will was disputed, the court required the subscribing witnesses to give viva voce evidence. Justice Wilkinson recognized that because the dispute turned primarily on the evidence of the individuals who claimed to have witnessed the testator sign the will, it was appropriate for the court “to consider the credibility and reliability of their evidence” as to the circumstances under which the will was signed.
A similar approach was recently endorsed in England by the Court of Appeal in Payne v Payne, [2018] EWCA Civ 985. In this case, the witnesses had printed their names in block capitals, rather than signing the testator’s will in the conventional sense. As a result, the court was asked to determine whether the will had been executed in accordance with the statutory requirements articulated in the Wills Act 1837. The trial judge determined the issue without hearing evidence from an attesting witness, even though one was available. On appeal, however, the Court of Appeal allowed evidence from the attesting witness to be heard, acknowledging the “special importance of hearing evidence, if at all possible, from an attesting witness.”
Calling Viva Voce Evidence When a Will Is Challenged on Other Grounds
In cases where a will challenge does not centre on the execution of the will, the Ontario courts have not addressed whether the attesting witnesses ought to be called as a matter of course to prove the will in solemn form. However, this issue has been addressed in English jurisprudence.
Historically, English law required at least one attesting witness to be called to give evidence of due execution, if available, to prove a will in solemn form. This principle traces back to Belbin v Skeats (1858), 164 E.R. 669 (Eng HC), where the court established that calling one witness will generally suffice to prove that the will was properly executed.
However, the recent decision of the High Court Chancery Division in Dunstan v Ball, [2024] EWHC 2105, has cast some doubt on the rigidity of this rule, at least when execution is not an issue in the proceedings. In this case, one of the deceased’s daughters moved to have her mother’s will set aside on a number of bases, including for want of knowledge and approval and undue influence. Because neither witness to the will was called at trial to give evidence as to the will’s execution, the will challenger argued that the will had not been proven in solemn form.
The court acknowledged the long-standing practice of requiring an attesting witness to give evidence, but questioned whether this practice remains necessary where the execution of the will is not in dispute. Moreover, given that none of the other grounds for challenging the will had been made out, Justice Berkley pointed out that the case was essentially “un-defended” and that under such circumstances, due execution can usually be proven by affidavit evidence.
However, “given the antiquity of the rule and its recent repetition in generalized form” in Payne v Payne,the court refrained from deciding whether or not viva voce evidence from an attesting witness is still necessary. Justice Berkley held that he was “not prepared to express any opinion on whether it is still necessary to require an attesting witness to attend the hearing or require written evidence from one of them before admitting a will to probate in solemn form where there is no dispute as to due execution and no other claim as to capacity, want of knowledge and approval, or undue influence.” Instead, the proceedings were adjourned to allow for evidence from the attesting witnesses to be called.
A Practical Takeaway
It appears that there is no bright-line rule as to when viva voce evidence from an attesting witness ought to be submitted to prove a will in solemn form. While viva voce evidence will almost certainly be required where the execution of the will is central to the parties’ dispute, the law appears to be unsettled as to whether such evidence is also required when the execution of the will is not contested. Nevertheless, the English case law suggests that calling at least one attesting witness remains the “safe” course when it is necessary to prove a will in solemn form, even if this may not be strictly necessary.
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