Tag: Due Execution
A recent decision of the Hong Kong Court of Appeal addresses the importance of the solicitor’s role in preparing and attending to the execution of a Will, particularly in the context of a Will challenge. The decision is discussed in this article. Although the decision is from Hong Kong, the test applied in respect of testamentary capacity is, as it is in Canada, the classic criteria from Banks v Goodfellow. In this regard, I found it interesting to consider the Hong Kong Court’s decision.
In Ontario, when a Will has been duly executed, meaning that it has been executed in accordance with the requirements set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, there is a presumption that the Will is valid. However, where suspicious circumstances are shown to exist surrounding the preparation and execution of a Will, this presumption will be spent, and the propounder will be required to prove that the testator had the requisite testamentary capacity to execute the Will. We have previously blogged about which party must prove certain elements in a Will challenge.
According to the article, the same presumption arising from due execution appears to exist in Hong Kong. In the decision of Choy Po Chun & Anor v Au Wing Lun (CACV 177/2014), the Hong Kong Court of Appeal places some additional responsibility with respect to the “due execution” of Wills on solicitors preparing them. In particular, the Court of Appeal sets out that a solicitor should undertake proper groundwork and make proper enquiries, such as following a checklist from the British Medical Association regarding the assessment of mental capacity, and the “golden rule” that a Will for an elderly or ill testator should be witnessed or approved by a medical practitioner who has examined the testator.
In this decision, the Court of Appeal set aside the lower court’s decision that the Will in question was valid. As the solicitor had not taken the additional steps noted above (namely following the checklist and the “golden rule”), it could not be presumed that the Banks v Goodfellow criteria had been met, and therefore each element of the test should have been asked, and proven by the propounder of the Will.
In reviewing the guidelines set out by the Court of Appeal, as summarized in the article, it seems as though the solicitor is being asked to consider whether suspicious circumstances may appear to exist, and to take additional steps if that may be the case. In particular, the Court of Appeal suggests the following:
- Where Will instructions are given by the children of an elderly testator who is not in good health, the lawyer should meet with the testator personally to confirm instructions;
- In the case of an elderly or infirm testator, the solicitor should follow the checklist noted above; and
- The solicitor should follow the “golden rule” when preparing a will for an aged or seriously ill testator.
While this decision is not binding in Canada, it nevertheless raises some interesting points, which a prudent solicitor may wish to consider and implement in their practice. For instance, it may be advisable to confirm instructions directly with the testator if initially provided by another individual, and take steps to confirm whether a testator has the requisite capacity in circumstances where he or she may be elderly and/or in poor health.
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The issue of how strictly a testator must comply with the formal rules for validly executing a will is one that has encouraged legislative change across the country in recent decades. If the standard is too high, the result will be the frustration of the testamentary intentions of people who died thinking that they had valid wills when in fact they were invalid. If the standard is too low, uncertainty as to what qualifies as a valid will and what doesn’t may lead to an increase in litigation.
Ontario maintains a strict compliance regime, requiring that the statutory requirements for valid execution of a will are carefully adhered to and denying courts the authority to validate a document that fails to meet them. Most other provinces and territories have given their courts at least some authority to cure deficiencies in the execution of a will, provided that the document is found to represent the testamentary intentions of the deceased.
While the debate continues in Ontario, a recent Alberta case may serve to assuage some of the concern that relaxing the strict requirements for execution will lead to the opening of the floodgates.
In Re Woods Estate, the Court of Queen’s Bench considered an application under Alberta’s Wills and Succession Act for a declaration that certain documents were valid as a will. The deceased, having been advised that she had approximately a year and a half to live, asked one of her sisters to help her retain a lawyer to prepare a will. In anticipation of the meeting, she took some notes on a pad of paper. A lawyer later attended at her home and completed a questionnaire used by her firm to take information for a will. The questionnaire included information about the testator’s choice of executor, the assets, her wishes with respect to her remains, and how she wanted the residue of her estate to be divided. The lawyer was going to contact the intended executor (an institution) to confirm their willingness to act, and arranged to return several days later to have the will executed. Unfortunately, the deceased died early the following morning. The Court had to consider whether to grant probate of the deceased’s notes and/or the questionnaire as representing her last will.
Turning to Alberta’s statute, the Court considered section 14 of the Act which provides that to be valid, a will must be in writing and “contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will”. There are further sections (15, 16, and 17) that add requirements for a formal will, holograph will, or a military will. Section 37 of Alberta’s Act allows the Court to relieve a will from the strict requirements under sections 15, 16, and 17, but not 14. Accordingly, because the notes and the questionnaire were not signed by the deceased with the intention that they have effect as her will, the Court was unable to apply section 37. The Court also considered whether the Act‘s rectification provisions could be used and held that they could not because they required that the omission of a signature be due to pure mistake or inadvertence. Here, it was never intended by the deceased that the notes or questionnaire would become a will and so it could not be said that the failure to sign was inadvertent.
Sadly, the presiding judge noted that she was satisfied that the questionnaire accurately reflected the testamentary intentions of the deceased and that she had no doubt the testator would have executed a will on those terms, but that Alberta statute nevertheless did not authorize the Court to validate the will.
As noted in the case, Alberta’s statute takes a “middle position” between strict compliance jurisdictions like Ontario and substantial compliance jurisdictions, where the Court has broader powers to grant probate to a document that is found to represent the testamentary intentions of the deceased notwithstanding the lack of a signature.
It seems that even in provinces where there has been some relaxation of the formal requirements for the valid execution of a will, there may still be cases where a document that is found to represent the testamentary intentions of the deceased will not be admitted to probate. Alberta’s experience demonstrates that there may be a range of legislative solutions to the formal validity issue, each with its own advantages and disadvantages.
Whether Ontario will move away from strict compliance in the future remains to be seen.
The recent England and Wales Court of Appeal decision in Olins v. Walters  EWCA Civ 782 gained some degree of notoriety among British legal observers. This Mutual Wills case was notable for its clear pronouncement that a constructive trust is impressed on the estate of the first testator to die during the lifetime of the second testator.
Of arguably greater interest was the somewhat remarkable finding of the Judge of first instance ( see  EWHC 3060 (Ch).] on the usually mundane issue of due execution. One of the witnesses to the Will stated under oath that she was "more than 100 percent sure that she had not witnessed the signature of the deceased on the Will." Notwithstanding this evidence, the trial judge held that she was honest but mistaken and upheld the Will.
It is not often easy to mess with legal presumptions. Consider, for instance, the commentary subsequent to the Supreme Court of Canada decision in Pecore v. Pecore which focused on the suggestion that resort to presumptions is made as a "last resort." While it is tempting to think that the evidence will always rule the day, the trial judge finding in Olins v. Walters (which, curiously, was appealed on the mutual wills issue but not on the finding of due execution) suggests that the presumption of due execution of a Will is particularly entrenched.
David M. Smith
READ THE TRANSCRIBED PODCAST HERE
During our podcast, we discussed the following legal issues:
(i) concepts of undue influence
(ii) suspicious circumstances
(iii) due execution; and
(iv) introduced the concept of international wills ——–