Tag: witness

09 Apr

Hull on Estates #569 – Beneficiary as a Witness to a Will? Don’t Go There.

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In today’s podcast, Noah Weisberg and Sayuri Kagami discuss the problems caused by a beneficiary under a Will witnessing its execution in the context of the recent Saskatchewan decision of Mahin v Kolosnjaji, 2019 SKQB 32.

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28 Jun

Hull on Estates #473 – When a witness does not recall witnessing a Will

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This week on Hull on Estates, Jonathon Kappy and Stuart Clark discuss Besaw Estate v. Besaw, 2015 CanLII 62411 (http://bit.ly/28Qumyo), and whether the court can admit a Will to probate when one of the attesting witnesses gives evidence that they don’t recall witnessing the Will.

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08 Mar

Hull on Estates #457 – Issues Surrounding Bequests to Witnesses of a Will or Power of Attorney

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This week on Hull on Estates, Paul Trudelle and Doreen So discuss how a bequest to a witness may be void and who should not be a witness to the execution of a Power of Attorney.

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16 Aug

Bequests to Witnesses Void

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Several years ago, my neighbour asked me to witness the execution of his will. I was glad to help, but at the same time, a little disappointed.

This is because of s. 12(1) of the Succession Law Reform Act. This section provides that, in effect, a bequest to a witness, the witness’s spouse, or a person claiming under either of them is void. The witness, however, remains a competent witness.

Similarly, s. 12(2) provides that a bequest to a person who signs a will on behalf of the testator is also void, as is any bequest to the person’s spouse or a person claiming under either of them.

However, the provisions are not absolute, and s. 12(3) allows the court to find that the bequest is not void. To trigger this saving provision, the court must be satisfied that neither the witness nor the witness’s spouse exercised any “improper or undue influence” on the testator. 

In addition, if the witnessing was not necessary, as in the case where the will was a holographic will, or where there were two other proper witnesses, then the bequest will not be void.

(Things can get complicated where there is a codicil. A gift voided due to an attesting beneficiary can be validated if there is a proper codicil that is properly witnessed. On the other hand, a valid gift in a will is not voided where the beneficiary witnesses a later codicil: see Hull and Hull, Probate Practice, 4th ed., p. 181.)

Solicitors take note: in Whittingham v. Crease, 1979 CanLII 286 (BC SC), the drafting solicitor was successfully sued where a bequest to the plaintiff failed because his wife witnessed the signing of the will.

Alas, in the case of my neighbour, and due to the nature of the bequests (which did not include me), s. 12 did not apply.

Have a great weekend.

Paul Trudelle

21 Dec

Capacity to Be Examined and Give Evidence

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When is a potential witness incapable of being examined?  Price J. examined this issue in Vokes Estate v. Palmer, 2009 CanLII 70132 (ON S.C.) in the context of a motion to compel a party to attend an examination under oath, where that party’s solicitor had earlier refused to allow him to take the oath or give a solemn affirmation.  

Ultimately finding the witness capable of taking an oath and giving evidence, Price J. reviewed the authorities.  The leading case of McGowan et al v. Haslehurst et al. (1977), 17 O.R. (2d) 440 (H.C.J.) states that parties should be able to avoid attendance at examinations for discovery on the basis of unsoundness of mind only in the clearest of cases.  The onus of proof of unsoundness is on the party seeking to avoid the examination (Barnes v. Kirk, [1968] 2 O.R. 213 (ON C.A.).

Price J. also applied the principles applicable to testing the competency of witnesses giving evidence at trial.  Under section 18 of Ontario’s Evidence Act, any person is presumed competent to give evidence, and therefore the onus is on the person to establish incapacity.  The presiding judge must examine the proposed witness. Section 16(1) of the Canada Evidence Act prescribes questions for such an inquiry, namely: whether the witness understands the nature of an oath or solemn affirmation, and whether the witness is able to communicate evidence.

As a sidenote to this decision, Price J. reviewed and rejected a capacity assessment that found the potential witness incapable of giving evidence.   

A review of this decision will be helpful to any practitioner dealing with questions of a potential witness’s capacity to give evidence.

Have a great week,

Chris Graham

Christopher M.B. Graham – Click here for more information on Chris Graham.

26 Feb

A Continuation of Experts in the Context of Estates – Hull on Estates # 99

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Listen to A Continuation of Experts in the Context of Estates.

This week on Hull on Estates, Craig and Diane continue the discussion regarding experts in the context of estates. The conversation touches primarily on choosing the expert and considerations for the report.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-250-6636, or leave us a comment on the Hull on Estates blog.

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