Bayford v. Boese, 2021 ONCA 442

Overview

Bayford v. Boese,[1] a recent decision of the Court of Appeal, is a crucial reminder that a signature on a will is not always the answer. Rather, persons seeking to prove the validity of a will bear the onus of proving that it was executed in accordance with the formal requirements set out in section 4 (2) of the Succession Law Reform Act (SLRA):

Valid execution of a will

(2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.[2]

When the authenticity of a signature of a testator or witness is called into question, evidence must be adduced to overcome the burden of proving the formal validity of the will. As held by the Court of Appeal, relying on a signed copy of the will alone will not overcome this burden in the face of expert evidence indicating that the will was not executed in accordance with the formal requirements.

Facts

The deceased, Bruce Boese (the “Deceased”), was the owner of a farm. He never married and had no children. The Respondent, Brenda Bayford (“Brenda”), was a long-time friend of Bruce. She had assisted Bruce with the operation of the farm for the two decades before his death and described him as her best friend.

In 1992, Bruce executed a will (the “1992 Will”) which named his parents as the sole beneficiaries of his estate. Because they had pre-deceased Bruce, Bruce’s estate would pass on intestacy to his brother, Brian Boese (“Brian”), and the two daughters of his deceased sister Rhonda in the absence of a subsequent valid will.

In 2013, the Deceased worked with his long-time lawyer to prepare a will (the “2013 Will”). There were two versions of the 2013 Will. Version 1 was signed by the Deceased alone and version 2, was signed by the Deceased and two witnesses. Only copies of version 1 and version 2 were produced at trial (no originals).

Brian challenged the validity of the 2013 Will. He asserted that Brenda created version 2 along with the two witnesses after the Deceased’s death and after she discovered that version 1 was not validly executed. This was supported by the fact that version 1 of the 2013 Will was never produced at trial. Brian maintained that version 1 was the same document that became version 2 once witnessed in the weeks following the Deceased’s death.

Brenda’s evidence was that she ran into one of the witnesses who testified that they witnessed the Deceased sign the 2013 Will.

The central factual issue was whether version 2 had been signed by the witnesses before the deceased’s death, or afterward when Brenda noticed it needed to be witnessed to be valid. Version 2 was located prior to the hearing and Brenda filed a motion to introduce it as fresh evidence.

During trial, Brian produced evidence from a handwriting expert which indicated that the Deceased’s signature that appeared version 1 and version 2 of the 2013 Will were the same. Despite the expert’s findings, the trial judge declared that the 2013 Will was validly executed in accordance with section 4 of the SLRA. Brian appealed the decision.

Holding and Reason

The Appeal was allowed and it was held that the trial judge erred in finding that Brenda had discharged her burden to prove the formal validity of the 2013 Will. This was due to a misapprehension of the content and significance of expert evidence adduced at trial.

In particular, it was held that the trial judge made several palpable and overriding errors throughout the trial and did not appreciate the significance of expert evidence proffered by a handwriting expert who concluded that the Deceased’s signature on version 1 and version 2 were copies of one another.

Despite the expert’s findings, the trial judge declared that the 2013 Will had been validly executed in accordance with section 4 of the SLRA. The Court of Appeal held this to be a significant error as the expert’s evidence was central to the determination of whether the Deceased signed the 2013 Will before two attesting witnesses in accordance with the rules of formality for executing wills.

This evidence established that version 1 transformed into version 2 when the two witnesses signed the 2013 Will after the Deceased’s death, contrary to section 4(2) of the SLRA. Brenda did not rebut the expert’s findings at trial and therefore failed to meet her onus to prove the formal validity of version 2 of the 2013 Will.

Conclusion

This decision stands as a reminder that someone seeking to propound a will cannot use it as a shield against evidence that calls its validity into question. If there is evidence indicating that the will was not properly executed, the propounder must lead evidence to overcome such a finding and prove the formal validity of the will.

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[1] Bayford v. Boese, 2021 ONCA 442.

[2] Succession Law Reform Act, RSO 1990, c S.26, s. 4 (2).

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.