This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Bayford v Boese, 2019 ONSC 5663 http://canlii.ca/t/j2nfb
Bayford v Boese, involved a dispute over signatures on a Will. The challenger neither disputed that the Will embodied the testator’s intentions, nor, that it was procured by undue influence, or that the testator lacked capacity. The only issue raised was whether the testator signed the Will and that the Will was executed in the presence of witnesses.
The deceased was the sole owner of a 22-acre farm in Ontario that he had inherited from his parents. He never married and had no children, but he did have a brother. For the two decades leading up to his death, his friend, Brenda, assisted in the operation of the farm.
After his passing, Brenda sought to prove a Will said to have been executed by the deceased. The Will appointed Brenda as Estate Trustee and left the farm property to her.
The deceased’s brother challenged the Will only on two grounds: first, that his brother did not sign the Will; and, second, if the signature on the Will was his brother’s, he did not sign it in the presence of two witnesses (whose signatures were on the Will as well). The brother argued that the Will did not conform to the required formalities and failed to comply with the provisions of the Succession Law Reform Act, RSO 1990 c 26 governing the execution of the Will. If the Will was not valid, the deceased’s estate would pass on an intestacy, where the brother and his deceased sister’s children would inherit.
Brenda provided evidence that she was the deceased’s best friend and that he had been estranged from his brother. She also testified that after the deceased passed, she found a signed Will without witness signatures. She took the Will to the lawyer’s office expecting that the lawyer would hold the original. No original was held by the law firm. Brenda’s evidence was that she returned to the farm and did a thorough search eventually finding a copy of the Will signed by the deceased and the witnesses in an envelope on the top of a kitchen cupboard.
The brother’s position was that Brenda took the first Will that she found and she “colluded, connived, or conspired” with the witnesses to sign that copy and assert that they witnessed the deceased’s signature. In the alternative, the brother argued the deceased’s signature had been forged.
Given the nature of the challenge to the validity of the Will, the focus was on whether Brenda could demonstrate that the Will was duly executed with the requisite formalities.
The brother called a forensic document examiner to give expert evidence with respect to his brother’s signature. The examiner was qualified to give opinion evidence, having worked with the Wisconsin State Crime Laboratory, the Unites States Secret Service, and, the FBI. Based on reviewing photocopies of both versions of the Will, the examiner concluded that she could neither identify, nor, eliminate the deceased as the person who signed each of the version of the Will.
The two witnesses also testified and the rejected the brother’s theory of the case. While there were some discrepancies in their testimony (one said she was sitting when the deceased signed the Will, the other said they were both standing, and they could not agree on whether they used one pen or different pens, etc.), Justice Corthorn accepted their evidence that the deceased signed first and they signed after. One witness held an administrative position and the other was a rental agent. Based on their respective education and/or work experience, the court drew an inference and found that they each had sufficient experience in completing paperwork to know that a witness to a document signs after the document is signed by the principal signatory.
While it used to be more common for drafting lawyers to store original Wills’ for their clients, more and more lawyers are choosing not to do so. It is important therefore for testators’ to understand the importance of ensuring that their original Wills are in a safe and secure place that can be accessed by the appointed Estate Trustee after death. Best practices would be to advise the Estate Trustee in advance of the fiduciary appointment in the Will and where and how to locate and take possession of it.