Does a testator have to sign his or her own Will to be valid? A little used provision of the Succession Law Reform Act permits a Will to be signed by some other person (an “amanuensis”) in testator’s presence and by the testator’s direction.
Our managing partner, Suzana Popovic-Montag, wrote several on this very topic.
With the logistical issues associated with execution of wills by video-conference, it may be that this manner of execution may become more widely used.
If this is to be done using presence by video conference, we have come up with some suggestions in our Hull e-State Planner Blog. (click here)
Note that the Substitute Decisions Act, 1992 does not specifically permit execution by an amanuensis for Powers of Attorney.
We continue in unchartered waters and we welcome any suggestions or comments.
Many people are generally aware that the preparation of a Will is a significant event which requires that certain formalities be complied with. In Ontario, the formal requirements for executing a valid Will are set out at sections 3 to 7 of the Succession Law Reform Act (the “SLRA”).
Formal Requirements of a (Non-Holograph) Will
The formal requirements set out in the SLRA for wills, aside from holograph wills and those of active service members, are:
- The will must be in writing;
- The will is signed at the end by either the testator OR by some other person in the presence of the testator and by the testator’s direction;
- The will is signed OR acknowledged by the testator in the presence of at least two attesting witnesses who are present at the same time; and
- At least two attesting witnesses sign/subscribe the will in the presence of the testator.
For most English speaking Ontarians, the formal requirements for executing a valid will pose little issue. They can read and review the document, sign it at the end in the presence of two people, and then have those two persons sign immediately after them. However, for some individuals, the formal requirements of a Will may pose difficulties. Today’s blog examines what types of issues may arise and how to address them.
For individuals who are unable to read or write, some may not be able to sign their name in the conventional sense. However, common law courts have accepted a wide variety of “marks” which are intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most testators will be able to execute a will without difficulty.
Those who Have Physical Difficulty Writing
For individuals who may experience physical difficulties in executing a Will, several solutions exist. As the Courts accept a variety of “marks,” it may be possible for those who find it difficult to fully sign their name to nonetheless adequately sign the will for the purpose of complying with the SLRA.
Alternatively, individuals may direct another person to sign the will for them, provided that the testator remains in their presence at that time. In certain jurisdictions, the person signing on behalf of the testator may also act as the attesting witness.
Formal Validity and Substantive Requirement of Knowledge and Approval of Will
While the provisions of the SLRA allow for some flexibility in how a testator “signs” a will, it is important to follow precautions in order to ensure that the substantial requirement of knowledge and approval are not later questioned. In situations where an individual is unable to read English or to sign documents, individuals may raise concerns about whether the testator knew of and approved the contents of the will purportedly being signed by them.
In such circumstances, where a will challenge is commenced, it is important to have evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.
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Amendments to Alberta’s succession legislation took effect in 2012 to expand the authority of the courts to order that a will is valid, notwithstanding its failure to comply with the formal requirements otherwise imposed under the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”). Specifically, section 37 of the Act reads as follows:
Court may validate non-compliant will
37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will.
Section 39(2) of the Act addresses the issue of the rectification of a will that has not been signed. If a court is convinced by “clear and compelling evidence” that the will was not signed as a result of pure mistake or inadvertence and the testator intended to give effect to the document as his or her last will, the court may add a signature to rectify the will.
The recent decision of Edmunds Estate, 2017 ABQB 754, provides clarification regarding the limits of the court’s ability to validate an unsigned will. In that case, a paralegal had received instructions from the deceased and prepared a will that reflected her instructions, but the new will was never signed by the deceased before she died. Justice C.M. Jones of the Alberta Court of Queen’s Bench found that the amended Act did not provide the Court with the authority to validate an unsigned will in the absence of clear and convincing evidence that the deceased had intended to sign the document and/or that she had failed to do so by inadvertence or mistake. The deceased could not have been said to have failed to sign the document by mistake, as she died before making arrangements to execute the will, and Justice Jones found that the evidence that the draft will was intended to be her last valid will fell short of what was required by the legislation.
In Ontario, the doctrine of strict compliance applies. Unless its defects can be cured by way of interpretation or rectification (the scope of which remedy remains limited), a will that does not comply with the formal requirements of the Succession Law Reform Act, RSO 1990, c S.26, will not be treated as valid and cannot be admitted to probate.
With several other provinces recently adding what Justice Jones refers to as “dispensing clauses” into their respective succession legislation, it will be interesting to see whether Ontario follows suit, opening the door to substantial compliance, in time.
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Other blog entries and podcasts that may be of interest:
Last week I wrote about amanuensis, the practice of a testator directing a third party to sign a will on his or her behalf, and when it can be used. A second practical consideration is whether the amanuensis should sign his or her own name or that of the testator. Courts have allowed both, so long as the amanuensis signed at the direction and in the presence of the testator.
In both Clark, In the Goods of (1839), 2 Curt 329 and Re Deeley & Green,  1 DLR 603 the amanuenses signed their own names rather than the testators’. In both these cases, the amanuenses noted they were signing at the testator’s direction. In Clark the amanuensis wrote:
“Signed on behalf of the testator, in his presence, and by his direction by me,
“Vicar of Warfield, Berks.”
In Deeley & Green the attestation clause included:
“By authority of the above named and the designed Robert Brown, who declares that he cannot write, never having been taught, I, Charles Smith Campbell, writer, Glasgow, notary public, subscribe these presents for him, he having authorised me for that purpose.”
An amanuensis may also write the testator’s name. In Jenkins v Gaisford (1863) 3 Sw & T 93, the testator had difficulty writing his name for some time before his death. He had a stamp made of his usual signature, which his amanuensis used to sign his will. Because the amanuensis was directed by the testator to use the stamp in his presence, the signature was valid and the will was upheld. Likewise, in Bailey, In the Goods of (1838) 1 Curt 914, the amanuensis wrote the testator’s name in his presence and at his direction. The amanuensis wrote an affidavit describing the circumstances and the will was upheld.
A will not signed by the testator him or herself may be vulnerable to challenge. It would be prudent to take extra care with meeting notes and a detailed affidavit of execution. It is important to remember that the other formal requirements of the will must be present for the will signed by amanuensis to be valid. One such requirement is that there must be two witnesses to the testator’s signature. An amanuensis does count as a witness to the will; the amanuensis signs his or her own name or the testator’s (see: Smith v Harris (1845) 1 Rob 262).
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We have written before on the formal requirements of a will in Ontario, under the Succession Law Reform Act. One requirement is that a will is signed “by the testator or by some other person in his or her presence and by his or her direction” (s4(1)(a)). This section indicates that a will may be signed by an agent, or a signature by amanuensis. It also raises the important question: in what circumstances would it be appropriate to have a third party sign a will on behalf
of the testator?
Signing a will via amanuensis is most appropriate where the testator lacks physical capacity to sign on his or her
own behalf. This is not to be confused with mental capacity:
a testator must always have the capacity to consider the extent and nature of his or her property and to consider the claims of potential beneficiaries. Moreover, the testator must be able to see and be mentally aware of his or her amanuensis (see: Peden v. Abraham,  3 WWR 265).
A person who does not have the physical capacity to write his or her name may also be unable to hold or read their will. In that case, the will must be read aloud so the testator can have knowledge of its contents and approve them. In the case of a very feeble person, it may be a good idea to keep the will as short as possible, so the testator can remain alert while it is read in its entirety.
If the testator is mentally capable but feeble, in pain, or otherwise unable to sign the document, an amanuensis may be used. In Clark, In the Goods of (1839), 2 Curt 329, the testator was too ill to hold a pen, so the will was signed on his behalf by the parish vicar and the will was held to be valid. A will signed by amanuensis was also allowed in a case where the testator did not know how to write (Re Deeley & Green,  1 DLR 603). In the case of a testator with low literacy, the testator may also make a mark of some kind, such as the classic X.
Thank you for reading.