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Written by: John Poyser
Posted on: December 4, 2017
Categories: Commentary
By John E.S. Poyser, BA LLB TEP, Senior Estate Litigator WEL Partners
Does a last will and testament need to be read over to prove knowledge and approval? The answer to that is “no.” A brief comment on point was made in 1938 by Middleton J.A. of the Ontario Court of Appeal in Re Souch: “the absence of a reading over of the will and codicils does not invalidate it.” [1]
The Ontario Court of Appeal was building on a solid foundation from earlier cases in England, most notably the 1838 decision of the Privy Council in Barry v. Butlin, framed read-over and compliance with instructions in the following terms:[2]
They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof, by which the cognizance of the contents of the Will, may be brought home to the deceased. The Court would naturally look for such evidence; in some cases it might be impossible to establish a Will without it, but it has no right in every case to require it.
The trial decision in Garwood v. Garwood Estate[3] is a 2016 example where a will is found to be valid even though the will-maker never sat down to read the will or listened while the terms were read out. The will was drafted in a way that complied with the instructions given to the lawyer when the will was commissioned. The trial judge relied on that in finding that the will-maker had knowledge and approval of its contents. The trial level decision was recently affirmed by the Manitoba Court of Appeal: “Demonstrating that a testator read the Will or had the Will read to him is not necessary to prove knowledge and approval of the Will if there is other satisfactory evidence available.”[4]
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[1] Souch Estate, Re, 1937 CarswellOnt 68, [1938] 1 D.L.R. 563, [1938] O.R. 48 (Ont. C.A.), at para. 11.
[2] Barry v. Butlin (1838), 163 E.R. 223, 12 E.R. 1089, 2 Moo. P.C. 480 (England P.C.). The will-maker in that case, Mr. Pendock Barry, was eccentric enough to name his son “Barry Barry (sic).” He also disinherited him.
[3] Garwood v. Garwood Estate, 2016 MBQB 113, 2016 CarswellMan 198 (Man. Q.B.), affirmed 2017 CarswellMan 312, 2017 MBCA 67, [2017] 10 W.W.R. 158, 281 A.C.W.S. (3d) 223, 29 E.T.R. (4th) 159 (Man. C.A.).
[4] Garwood v. Garwood Estate, 2017 CarswellMan 312, 2017 MBCA 67, [2017] 10 W.W.R. 158, 281 A.C.W.S. (3d) 223, 29 E.T.R. (4th) 159 (Man. C.A.), at para. 19.
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