A recent news article refers to the struggle of father of accused killer Bryer Schmegelsky to obtain video footage from the Royal Canadian Mounted Police.
The father’s lawyer has referred to the video as the accused’s “last will and testament.” It was apparently recorded very shortly before death and expresses funeral and burial preferences.
Oral wills (also known as nuncupative wills) are recognized in select jurisdictions, including some American states:
- New York law provides that an oral will, heard by at least two witnesses and made by a member of the active military or a mariner while at sea can be valid and will expire one year after discharge from the armed forces or three years after a sailor, if the testator survives the situation of peril;
- In North Carolina, an oral will made while the testator’s death is imminent and in circumstances where the testator does not survive in the presence of two or more witnesses may be valid;
- In Texas, oral wills made in the presence of three or more witnesses on the testator’s deathbed before September 2007 are valid in respect of personal property of limited value.
As most state legislation is silent on the issue of videotaped wills, if the testator’s oral wishes are videotaped, they must generally meet the criteria for a valid oral will to be effective.
However, in Canada, a will must be in writing, signed by the testator, and witnessed by two people. Alternatively, a will that is entirely in the testator’s handwriting and unwitnessed may be valid. Because Ontario is a strict compliance jurisdiction, any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.
While a videotaped statement intended to be viewed posthumously may not be a valid will in Ontario and other Canadian provinces, it can nevertheless be used to express the deceased’s final wishes, for example with respect to the disposition of his or her remains (which are typically precatory rather than enforceable, even if appearing within a written document), and may assist a family in finding closure following an unexpected loss.
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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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An Order excluding all the parties from each other’s examinations for discovery was made in an estate matter before the Hon. Justice Myers. In Boodhoo v. Persaud, the Plaintiff is one of the Deceased’s surviving daughters, while the Defendants are the Deceased’s brother and sister-in-law. During the initial stages of litigation, the Defendant Uncle was removed as the Estate Trustee of the Boodhoo Estate in 2012 and he was ordered to account for the duration of his administration. By the time of the present hearing before Justice Myers, the accounting was still deficient. At the same time, the Plaintiff was also pursuing allegations against her uncle’s wife for her involvement in the administration of the Estate.
In applying the test for the exclusion of witnesses in Lazar v. TD General Insurance Company, 2017 ONSC 1242, Justice Myers found that “all of the parties have cause to be worried that others will tailor their evidence based upon what they hear at examinations for discovery”. Where the credibility of the parties appears to be crucial, especially in the absence of documentary records, his Honour ordered that:
“Counsel for the parties and anyone who attends discoveries with them shall not disclose any evidence given by a party on examination for discovery to any other party in advance of the completion of all of their respective examinations by answering all undertakings and refusals (if any). Nor shall any counsel or their staff provide any transcripts or summaries of transcripts of any of the examinations for discovery to any of the parties prior to the completion of all of their respective examinations by answering all undertakings and refusals (if any).”
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