Tag: execution of wills
In July, my colleague Paul Trudelle discussed the Virtual Signing of Wills, noting that in response to the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney.
On December 10, 2020, pursuant to Ontario Regulation 458/20: Extensions of Orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, virtual signing of Wills and Powers of Attorney have been extended until January 20, 2021 in Ontario.
Ontario Regulation 129/20: Signatures in Wills and Powers of Attorney among other things, provides the following:
1. The requirement for a testator or witness to be present in each other’s presence for the making of a Will (or Power of Attorney) may be satisfied by means of audio-visual communication technology, with certain restrictions.
2. “Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
3. At least one person who is providing services as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution of the Will (or Power of Attorney).
4. The signatures or subscriptions may be made by signing or subscribing complete, identical copies of the Will (or Power of Attorney) in counterpart, which together shall constitute the Will (or Power of Attorney).
5. For this purpose, copies of a Will (or Power of Attorney) will be considered identical even if there are minor, non-substantive differences in format or layout between the copies.
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On today’s podcast, Rebecca Rauws and Garrett Horrocks discuss the execution of Wills in the midst of COVID-19, and how the emergency measures introduced this year may impact how Wills are executed in the future. The Globe and Mail article mentioned by Garrett and Rebecca during the podcast can be found here.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
In response to issues arising in the execution of Wills during the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney. Ontario Regulation 129/20. made under the Emergency Management and Civil Protection Act provided that the requirement that a testator or witness be present in each other’s presence for the making of a Will or Power of Attorney may be satisfied by means of audio-visual communication technology, with certain restrictions. See our blog on the virtual witnessing of Wills and Powers of Attorney, here.
Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act. The extension is for a period of 30 days after the Order is continued, subject to further extension.
The new Order, Ontario Regulation 129/20 formerly made under the Emergency Management and Civil Protection Act, but now continued under the Reopening Ontario Act can be found here.
The Reopening Ontario Act received Royal assent on July 21, 2020 and came into effect on July 24, 2020.
The power to extend or amend an Order ceases on the first anniversary of the day orders are continued (ie. July 24, 2021).
This would mean that the virtual witnessing of Wills and Powers of Attorney is extended until August 23, 2020, with the government having the power to further extend the provisions.
We will keep you posted.
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As of April 7, Wills can be witnessed by video conference.
This will likely require a different affidavit of execution. The typical affidavit of execution is a Court Form – Form 74.8- may not be sufficient if the Will is witnessed by video conference.
Likely, two separate affidavits of execution will be necessary.
In light of these changes, we have created a set of sample Affidavits of Execution for your consideration. Of course, we do not know what the Courts will ultimately require as evidence of execution, so for now it’s just a best guess.
Click here to access sample Affidavits of Execution and further information about Affidavits of Execution for video witnessing.
Feel free to reach out with any questions,
As of April 7, Wills can be witnessed by video conference.
As you are aware, two witnesses must be “in the presence of” the testator when a typed Will is signed. This has historically required physical presence.
The new Emergency Order now confirms that the “presence” may be by “audio-visual communication technology”.
Importantly, at least 1 of the 2 witnesses must be a licensee of the Law Society of Ontario.
In light of these changes, we, together with Hull e-State Planner, have created a suggested Video Execution Checklist to use for execution of wills in these circumstances.
Click here to access the Checklist and further information about the Emergency Order.
Feel free to reach out with any questions,
Like many of you, we are struggling to figure out ways to get our clients’ Wills executed during this period of social distancing.
Ontario has very strict rules on how a Will has to be executed in order for it to be valid. Unlike many other Provinces, Ontario does not have “substantial compliance” legislation that allows a Court to validate a Will that has not been duly executed.
These rules cannot be changed except by legislative action. The Succession Law Reform Act would have to be amended. The Law Society of Ontario is not able to give permission to override these requirements.
The key requirements are that:
- The Will-maker must sign or acknowledge his/her signature in the presence of two witness; and
- Both witnesses must sign in the presence of the Will-maker and each other.
The “presence of” requirement is generally regarded as having to be in the same room and be able to see one another signing the Will.
We have almost always resisted sending the Will out to be executed by the client without our presence for fear that it would not be executed properly. However, under the current circumstances, we are adopting a process for our clients who need to have their Wills signed.
Protocol for Remote Execution
Firstly, we explain to the client the strict rules for signing the Will and that the Will won’t be valid unless these rules are followed exactly.
We also remind them of who cannot be a witness:
- A Beneficiary (even a contingent beneficiary);
- The married spouse of a Beneficiary; or
- A person under age 18.
A person who is named as an executor, but not a beneficiary, can be a proper witness.
We’ve created this Client Will Signing Checklist document that we send to the client and ask them to complete during the Will signing and send back to us. Here is a link to the document.
Some firms are asking their clients to video the Will execution process in such a way that all three parties, the Will-maker and the two witnesses are visible. The client can send a copy of the video for the lawyer’s files. Of course, this is not required, but may put you more at ease when you see that they did it correctly.
The Affidavit of Execution can be prepared and sworn after the signing.
Once we are able to interact in person, we are recommending that our clients come in to re-sign their Wills at our office, just to be on the safe side.
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For a will in Ontario to be valid, it must meet the statutory requirements for due execution as outlined in section 4(1) of the Succession Law Reform Act (the “SLRA”). In some cases, however, determining whether these requirements have been met is not always clear-cut. Bayford v. Boese, 2019 ONSC 5663 provides such an example.
In this case, the testator, Bruce Boese (“Bruce”), died in June of 2015. Bruce was the sole owner of a farm he inherited from his parents. He never married and did not have any children. For the past two decades prior to Bruce’s death, his friend, Brenda Bayford (“Brenda”), assisted him with the operation of the farm.
Throughout his lifetime, Bruce executed two wills: one in 1992 and another in 2013. Under the 1992 will, Bruce named his parents as his sole beneficiaries. However, since both of Bruce’s parents had pre-deceased him, his estate would pass on an intestacy to his siblings, with Brian and Rhonda each inheriting 50%. Under the 2013 will, the farm property was to be transferred to Brenda, with the residue being equally divided amongst four children of Bruce’s two siblings. Interestingly, the 2013 will had the word “DRAFT” stamped on every page. Also, there were two versions of the 2013 will: “Version 1” and “Version 2”. Version 1 contained Bruce’s signature but did not contain the signatures of any witnesses. Version 2 contained Bruce’s signatures and the signature of two witnesses, Sophie Gordon (“Sophie”) and Colleen Desarmia (“Colleen”).
After Bruce’s death, Brenda found Version 1 of the will. She brought it to the office of Bruce’s lawyer as she thought that the fully executed version of the will would be there. It was not. Shortly after, Colleen informed Brenda of the existence of Version 2. Upon hearing this, Brenda did a further search and found Version 2.
Brian asserted that the 2013 will did not comply with section 4(1) of the SLRA. His theory was that upon finding Version 1 of the will, Brenda colluded with the two witnesses to procure the 2013 will. In the alternative, Brian asserted that Bruce’s signature was forged on the 2013 will which the two witnesses signed.
Although Brian called an expert to give evidence with respect to Bruce’s signature on the wills, Justice Corthorn did not find the expert’s evidence to be helpful to Brian, nor did she find that it made the two witnesses less credible.
At trial, there were discrepancies between the evidence of the two witnesses with respect to the specific mechanics of Bruce signing the will and the witnessing of his signature. For example, Colleen testified that she believed that both she and Sophie remained standing while Bruce was seated at the kitchen table when he signed the 2013 Will. Sophie’s evidence was that she believed she was the only person standing and that both Bruce and Colleen were seated. Justice Corthorn noted, however, that “these inconsistencies [were] in keeping with the frailty of human memory, including […] the passage of time” and that they did not give her a reason to be concerned with the credibility of either witness.
Furthermore, based on the witnesses’ respective education and work experience, Justice Corthorn drew an inference that each of them had sufficient experience in completing paperwork to know that a witness to a document signs after the document is signed by the principal signatory.
Taking this into consideration, Justice Corthorn concluded that Bruce’s 2013 will was executed in accordance with s. 4(1) of the SLRA and that it was therefore valid.
While Bayford v Boese provides many noteworthy take-aways, perhaps the main one is the importance of ensuring that a will is properly executed, and that it is stored in a safe and easily accessible place that the testator’s lawyer and estate trustee(s) are aware of. Had this happened, the case could have been avoided altogether.
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Ian Hull and Celine Dookie
In Ontario, a Will has to be in writing and typically an original is required for probate to be granted. With the increase of the technological presence in the everyday life of a typical Canadian, the question remains, should electronic Wills be admitted to probate?
Clare E. Burns and Leandra Appugliesi wrote an interesting paper on this topic titled “There’s an App for that: E-Wills in Ontario” that argued for the development of a legislative scheme in Ontario that admits the possibility of electronic Wills.
In discussing this question, the experience of other jurisdictions was considered, including the United States and Australia.
In 2005, the State of Tennessee was the first American state to recognize the validity of a Will executed with an e-signature. In that particular case, the deceased prepared his Will on his computer and asked two of his neighbours to serve as witnesses. A computer-generated signature was affixed to the Will. Almost ten years later, in 2013, the State of Ohio admitted to probate a Will that was written in the deceased’s own handwriting and signed by him, on a tablet computer.
It appears that electronic Wills are most probably valid in Florida, Texas and California and consistent with existing legislation, though the legislation does not specifically contemplate electronic Wills. The State of Nevada, on the other hand, has specifically enacted legislation which expressly allows for the validity of electronic Wills.
Australia, in comparison to the United States, has managed the question of electronic Wills by making use of the “substantial compliance” legislation that exists in each state, which gives the state courts the authority to dispense with the formal requirements for the execution of the Will. In comparison, the legislation in Ontario is one of “strict compliance” such that the formalities of a Will are required before a Certificate of Appointment is granted.
It appears that in Ontario, though a Court could theoretically admit an electronic Will (i.e. not an original copy) to probate, the formalities in accordance with the Succession Law Reform Act must be met, in any event. As a result, an electronic Will that does not meet any one of the formalities will almost certainly not be admitted to probate.
As various electronic gadgets are now being used more and more, Canadians are also using them to make testamentary documents. In keeping with the realities of contemporary life, it may be that legislative reform is needed.
In discussing the possibility of legislative reform, Ms. Burns and Ms. Appugliesi, also addressed the importance of various policy considerations. In doing so, they addressed the John J. Langbein analysis, which set out four main purposes to the formalities requirements in any Wills legislation:
- Evidentiary: the writing, signature and attestation requirements serve as evidence of testamentary intent in a reliable and permanent form;
- Channeling: the writing, signature and attestation requirements ease the administrative burden on the court system by setting out a uniform checklist of what is required before probate can be granted;
- Cautionary: the formalities are designed to impress the seriousness of the testamentary act upon the testator so as to ensure that he or she has fully thought through the result of executing the Will; and
- Protective: the formalities are designed to reduce the opportunity for fraud and undue influence by involving witnesses in the process.
As litigators, the “evidentiary” and the “protective” purposes are particularly important, as we often consider questions of testamentary intent, undue influence and fraud (albeit more rarely), amongst other things.
From that perspective, any legislative amendments to be made must address the various policy considerations and the implications of any such amendments on the legal system in Ontario.
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Find this blog interesting? Please consider these other related posts:
Republication of a valid will makes the will operate as if it were created on the date of republication. Generally speaking, a codicil republishes the will to which it refers, unless a contrary intention is expressed in the codicil. For example, a codicil, duly executed on September 14, 2016, to an earlier will would republish the will, making it operate as if the will were executed on September 14, 2016. This is true whether or not the codicil is annexed to the will. A testamentary document that is not called a codicil and that does not make reference to a specific earlier will does not republish the will.
The Wills Act, 1837 provided that a republished will is deemed to have been made at the time of the republication. The Succession Law Reform Act (SLRA) does not make any reference to republication, to either confirm or abolish the doctrine. Thus, the SLRA has a neutral effect on the doctrine, and it continues to operate
in Ontario law.
The concept of republication was more important before the Wills Act, 1837 was enacted, when it was a rule of law that real property acquired after the date of the execution of a will could not be devised by that will. The Wills Act, 1837 changed the law so that a will speaks from the date of death in respect to the property of the testator.
Republication can still be useful in estate planning. For example, republication can be used to incorporate by reference a document or memorandum into the will that was not in existence when the will was first executed (Lady Truro, Re (1866), [1865-69] LR 1 P &D 201). Republication might also be significant in construing the meaning of certain provisions of a will, particularly descriptions.
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The formal requirements for execution of a will, or any testamentary instrument in Ontario, are governed by Part I of the Succession Law Reform Act ("SLRA"). The definition of "will" in s. 1 of the SLRA includes a testament, codicil, will, or other testamentary disposition. The most critical form requirements are that the will must be in writing, signed by the testator and two witnesses. Other requirements exist, of course.
Many jurisdictions contain dispensation clauses relaxing the formal compliance requirements, if the court is satisfied that a document or any writing on a document embodies the testamentary intentions of a deceased. For example, s. 23 of Manitoba’s Wills Act or California’s Probate Section 6110-6113. Not so with Ontario, except for holograph wills and for members of the Canadian Forces on active service. While there is wiggle room in terms of the interpretation of the execution requirements, for instance what constitutes "in writing" or "signed by the testator", if the formal requirements are not met and no specific exemption applies, there is no saving provision based on testator’s intention, and therefore no testamentary instrument.
This can have harsh consequences, by invalidating otherwise perfectly good wills on narrow technical grounds. On the other hand, the SLRA provides time-tested, black-letter legal clarity. Time tested, because the formal requirements descend from the Wills Act, 1837.
Have a great weekend,
Christopher M.B. Graham – Click here for more information on Chris Graham.