Author: Paul Emile Trudelle
Aside from the seminal yet apparently unreported decision of The State of New York v. Kris Kringle, which was dramatized in Miracle on 34th Street, there have been numerous other mentions of Santa Claus in judicial decisions. In honour of the season, I take this opportunity to note the following:
- In Frasko v. Saturn 121, Inc. et al, which the judge described as “a novel application”, the plaintiff sued 115 shell corporations. (The plaintiff was said to be in the business of buying and selling shelf companies.) The plaintiff noted the 115 defendants in default, and moved for default judgment. In support of the noting in default, the plaintiff filed a 100 page affidavit of service. In it, as stated by the judge, the plaintiff claimed to have served or attempted to personally serve the 115 corporate defendants at a wide variety of locations throughout Ontario in only three days, plus 10 other corporate defendants in another proceeding. The judge questioned the accuracy of the affidavit of service, stating: “While Santa Claus has perfected the art of visiting millions of homes in a single night, [the plaintiff’s] affidavit of service makes no claim to have enlisted such assistance in effecting such a miracle of personal service.”
- In Royal Bank v. Edna Granite & Marble Inc, the defendants argued that they had not made payments on a loan for a number of years, and thus the claim was statute-barred. Payments were, however, made by the guarantors of the loan. The bank argued that it did not matter who made the payments: whether they were made “by the borrower, by the Guarantors, or by Santa Claus”. The court accepted this argument.
- In v. Liu, referred to in R. v. Sipes at para. 718, the accused was charged with first-degree murder. Upon his arrest, scratches were observed on his neck and chest. Expert evidence established that the scratches were consistent with ancient Chinese medical treatment. For some reason, the accused sent one of the investigating officers a Christmas card depicting Santa Claus with scratches on his back, being looked at incredulously by Mrs. Claus. The front of the card read “I swear, Honey – I scratched it going down a chimney. Inside the card read “Sometimes, even Mrs. Claus has a hard time believing in Santa.” There, the Crown was unsuccessful in adducing the card as evidence at trial, as its probative value was “tenuous”, yet the potential prejudice was high.
- In v. M.J.O., the judge had difficulty believing the accused’s evidence. “I have read the Mr. M.J.O.’s statement on several occasions. I cannot imaging circumstances that would lead me to believe it. To believe that version of events, in the face of the objective evidence, I would have to believe in Santa Claus and the tooth—fairy.”
There are many other reported reference to Santa Claus on CanLII. Many of them are in sad or disturbing contexts, and are not appropriate for a Friday, pre-Christmas blog.
In parts I to IV of my notes on due execution, I discussed some issues relating to the execution of “formal” or non-holograph wills.
Today, I will touch briefly on the execution of other types of wills. Significantly, it should be noted that the requirement of two or more attesting witnesses does not apply in the case of the will of a member of forces on active service, or in the case of a holograph will.
A “member of forces on active service” is defined in the Succession Law Reform Act (“SLRA”) as any person who is:
(a) a member of the Canadian Forces placed on active service under the National Defence Act (Canada);
(b) a member of any other naval, land or air force while on active service; or
(c) a sailor when at sea or in the course of a voyage. Such a person may make a will by “a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness”.
In addition to a “soldier’s will”, special allowance is made in Ontario for holograph wills. To be a valid holograph will, the will needs to be wholly in the handwriting and signature of the testator. The requirement that the holograph will be “wholly” in the handwriting of the deceased means that a will that is typewritten by the deceased will not qualify as a holograph will. Similarly, the testator cannot simply sign a document handwritten by another.
A question that often arises where a will has not been properly executed is whether the will can be proved in any event.
For example, if two witnesses are present when the will is signed, but only one signs as witness. Recently, the Ontario court has affirmed that there is no provision in the Succession Law Reform Act (“SLRA”) which allows a court to admit a document to probate as a will where the required formalities have not been observed: there is no doctrine of “substantial compliance” with the law in Ontario. (In some other provinces, the legislation allows a court to admit the Will to probate if the court is satisfied that the will is the true expression of the wishes of the testator.)
In the relatively recent case of Sills v. Daley (2002), the Court rejected the doctrine of substantial compliance. There, only one witness signed the will. The judge reviewed the legal texts, and the caselaw, and found that he could not ignore the clear provisions of the SLRA and allow the will to be probated. To do so, the court held, would be to create a discretion in the court which is not found in the SLRA.
The Succession Law Reform Act (“SLRA”) requires that the will be signed or acknowledged in the present of two or more witnesses present at the same time. If the will is not signed in the presence of the two witnesses, the signature can be acknowledged. This requires: a. that the signature be on the document at the time of the acknowledgement; b. that the witnesses see or have the opportunity to see the signature; and c. that the testator, by acts or words, indicate that he or shee has signed the document. The witnesses do not need to know that they are attesting to a will.
The SLRA requires that the witnesses each subscribe the will in the presence of the testator. They must also be present at the same time when the testator makes or acknowledges his signature. In a British Columbia case, Simkins Estate v. Simkins, the Court granted probate where the testator signed the will in the presence of only one of the witnesses, who then subscribed the will. The testator, moments later, acknowledged his signature in the presence of both of the witnesses, and the second witness signed the will. The court held that while, technically, the first witness should have re-signed the will, “To rule such a will invalid is an absurdity and, what is worse, a total defeat of the acknowledged intent of the testator by means of a document that complied with all the formalities, save and except the exact sequence, that have been held to be necessary.” (The outcome of this case may have been different if it was decided in Ontario.
Tomorrow, I will discuss the issue of “substantial compliance”, and whether it applies in Ontario.) The witnesses must sign after the testator and not before. They need not both be present when they sign as witnesses, although they both need to be present when the testator signs or acknowledges her signature. Therefore, a will can be valid where one witness leaves before the other witness signs. The testator must be able to see the witnesses attest, if he chooses. Thus, if a testator is unable to move, and is not facing the witnesses when they sign, the will may be invalidated(!). Similarly, witnesses must have the opportunity of seeing the testator’s signature, whether it be signed in their presence, or acknowledged. A will will not be valid where the testator’s signature is covered up.
Have a good day, Paul Trudelle
Continuing with our discussion of the mechanics and technical aspects of execution of a will, I now turn to the signing and witnessing of the will.
Section 4(1) of the Succession Law Reform Act *(“SLRA”) provides that, except in the case of the will of a member of forces on active service, or in the case of a holograph will, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator. The requirement that the will be “signed” has been loosely interpreted, with the intention of the deceased being determinative. Courts have accepted wills where:
- the will bears the signature of the testator;
- the will bears part of the signature of the testator;
- the will bears the initials of the testator;
- the will bears a mark made by the testator intended to represent the testator’s name (even in situations where the testator is able to write his name, or in situations where the mark of a physically handicapped testator is guided by someone else;
- the will is impressed with the stamp of the testator;
- the testator signs the will using an assumed name;
- the testator signs the will using her title (eg. “Mother”);
- the testator signs the will using her name from a previous marriage;
- the will is signed by another person at the instance of the testator (signature by an amanuensis)
The onus of proving due execution is on those propounding the will. The burden is on the propounder on the balance of probabilities. The position of the signature is important. In addition to the reference in s. 4(1) that the will be signed “at its end”, s. 7 of the SLRA also impacts on the validity of the will and the position of the signature.
Hello. My name is Paul Trudelle, and I am an associate with Hull and Hull LLP. I am the guest “blogger” this week. I plan to use my time and space to address some of the issues surrounding the due execution of a will.
Execution of a will is often seen as a simple task, but the process can sometimes pose serious challenges to the practitioner retained to prepare an effective will. Challenges to the validity of a will on the basis of due execution are common, as are solicitor negligence actions where the will fails as a result of improper execution.
The requirements for due execution of a will are set out in Part I of the Succession Law Reform Act, R.S.O. 1990, c. S.26 as amended (“SLRA”). The SLRA provides the framework for the valid execution of a will. These sections merit a review. Section 3 provides that a will is valid only when it is in writing. “Writing” is defined in s. 29 of the Interpretation Act, R.S.O. 1990, c. I.11 as including words printed, painted, engraved, lithographed, photographed, or represented or reproduced by any other mode in a visible form.
There is no provision for videotaped wills in Ontario. A will may be written in a foreign language. However, when applying for a Certificate of Appointment, the Court must be furnished with an authenticated translation. Alternatively, a non-English speaking testator can have the English will read to him by a translator. The translator should swear an affidavit averring that the will was read over to the testator and that he or she appeared to understand it. Section 4(1) of the SLRA sets out the requirements for due execution.
Tomorrow, I will look closely at the requirements of this section.
Have a great day. Paul Trudelle