O What a Tangled Web We Weave: Bayford v. Boese
Bayford v. Boese[1]
Bruce Boese owned a farm and operated it for many years. He never married and had no children. Brenda Bayford was his long-time friend and helped him to operate the farm during the last two decades of his life. Bruce made a will in 1992 in which he named his parents as the sole beneficiaries of his estate. However, they predeceased him. If he did not make another will, he would therefore die intestate, and in that case his brother Brian would inherit 50% of the estate and the two daughters of his deceased sister would inherit the other 50%.
In 2009 Bruce appointed Brenda as his attorney for property and personal care. And in 2013 his long-time lawyer prepared a draft will, dated 15 August 2013, which named Brenda as his sole executor and trustee and left her his farm property. The will had the word ‘DRAFT’ stamped on every page. Two versions of this document, both photocopies, were produced at trial. ‘Version 1’ contained only Bruce’s signature and no signatures of witnesses. ‘Version 2’ contained Bruce’s signature and the signatures of two witnesses, Ms Gordon and Ms Desarmia. Brenda claimed that Version 2 was signed and witnessed before Bruce died. On the other hand, Brian claimed that the witnesses’ signatures had been added after Bruce died when Brenda discovered that Version 1 was not valid, since it lacked the signatures of witnesses.
Brenda found Version 1 after Bruce died. She took it to the lawyer’s office and was told that it was not valid because Bruce’s signature was not witnessed, and further that the lawyer’s office did not have a fully executed copy of the will. Brenda testified that she later encountered one of the two witnesses, who told her that they had witnessed Bruce sign the will and that they had attested his signature. Brenda also testified that thereafter she returned to the house and found Version 2.
The two witnesses, who were friends of Brenda and also knew Bruce, testified that they assisted Bruce in executing Version 2 and then added their signatures. Other evidence cast doubt on the evidence of Brenda and the two witnesses. Among other things, the original of Version 1 was never produced. In addition, a handwriting expert engaged by Brian testified that in her opinion Versions 1 and 2 contained copies of the same signature that was said to be Bruce’s. She used a transparency chart of the two signatures from the two wills and discovered that they were exactly the same. She testified that this is impossible, since no one writes one’s signature exactly the same way twice. There will always be a natural variation in the writing. Brian’s theory was that Brenda colluded with Ms Desarmia and Ms Gordon to create Version 2.
However, the trial judge found that Brian’s theory ran counter to Brenda’s conduct after Bruce’s death. Thus, she accepted Brenda’s evidence and held that Version 2 had been validly executed in accordance with s. 4(1) of the Succession Law Reform Act.[2] Brian appealed.
The Court of Appeal allowed the appeal on the ground that the trial judge fell into palpable and overriding error that went to the very core of the outcome of the case. She misunderstood Brian’s position and the importance of the expert evidence. Consequently, she considered the expert evidence to be irrelevant.
With the use of the overlay, the expert demonstrated that the two signatures were copied from one signature. That meant that Bruce could not have signed both Versions 1 and 2 separately with original signatures The trial judge failed to appreciate the significance of the expert evidence. Possible inferences of the evidence were: (a) that Bruce’s signature on Version 2 was a reproduced copy of Version 1; (b) that the original Version 1 could have been converted into Version 2, which the ‘witnesses’ then signed; and (c) that the two witnesses signed Version 1 after Bruce died. Moreover, the Trial judge did not address the question why the original of Version 1 was not produced at trial, or the significance of the inconsistencies in Brenda’s evidence about her discovery of Version 2.
The Court of Appeal also noted that the trial judge made other related errors. She took Brenda’s evidence of Bruce’s intention into account, even though the testator’s intention is not relevant to the formal validity of a will. She also stated that the onus was on Brian to produce the original of Version 1, when the onus lay on Brenda to prove formal validity. Besides, it was Brenda’s inability to produce the original of Version 1 that caused the issue of validity to arise.
On the appeal, Brenda sought to introduce the original of Version 2 as fresh evidence. However, the court held that the evidence did not meet the test for admission of fresh evidence and besides the existence of Version 2 would not resolve the issue of its validity, since it did not explain what happened to the original of Version 1.
The court did not, of course, accuse Brenda and the witnesses of forgery, although Brian suggested it. But that possibility certainly formed the background to the decision. It is understandable that Brenda believed Bruce was leaving her his farm and intended to do so, especially because she had helped him operate the farm for two decades. After all, he had his lawyer draft a will to that effect. She would therefore have been greatly disappointed when she learnt that Bruce had failed to carry out his intention. Thus (and this is only a supposition), she may have been tempted to do what she could to secure the supposed gift. But of course, assuming that Bruce did intend to benefit Brenda, he may have had a change of heart and failed to execute the will for that reason. No one will ever know.
Therefore, the decision of the Court of Appeal is correct in my opinion. A document, even if intended as a will, cannot serve as one unless it has been executed and attested in accordance with the statutory formalities and Brenda failed to prove that this one had been.
The case does highlight that the legal profession can and ought to do much more to educate the Bruces and Brendas and indeed every Tom, Dick, and Harriet, of the importance of having a professional prepare their wills and to have them executed and attested properly. Of course, we need to educate them also not to tamper with the document afterwards.
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[1] 2021 ONCA 442, reversing 2019 ONSC 5663, 50 ETR (4th) 204. See also the fine comment by my colleague, Bryan Gilmartin, ‘Think You can Hide Behind a Signature? Think Again! – Bayford v. Boese, 2021 ONCA 442’ in WEL Newsletter, July 2021, vol. 11, No. 4.
[2] R.S.O. 1990, c. S.26.
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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.
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Written by: Albert Oosterhoff
Posted on: August 11, 2021
Categories: Commentary, WEL Newsletter
Bayford v. Boese[1]
Bruce Boese owned a farm and operated it for many years. He never married and had no children. Brenda Bayford was his long-time friend and helped him to operate the farm during the last two decades of his life. Bruce made a will in 1992 in which he named his parents as the sole beneficiaries of his estate. However, they predeceased him. If he did not make another will, he would therefore die intestate, and in that case his brother Brian would inherit 50% of the estate and the two daughters of his deceased sister would inherit the other 50%.
In 2009 Bruce appointed Brenda as his attorney for property and personal care. And in 2013 his long-time lawyer prepared a draft will, dated 15 August 2013, which named Brenda as his sole executor and trustee and left her his farm property. The will had the word ‘DRAFT’ stamped on every page. Two versions of this document, both photocopies, were produced at trial. ‘Version 1’ contained only Bruce’s signature and no signatures of witnesses. ‘Version 2’ contained Bruce’s signature and the signatures of two witnesses, Ms Gordon and Ms Desarmia. Brenda claimed that Version 2 was signed and witnessed before Bruce died. On the other hand, Brian claimed that the witnesses’ signatures had been added after Bruce died when Brenda discovered that Version 1 was not valid, since it lacked the signatures of witnesses.
Brenda found Version 1 after Bruce died. She took it to the lawyer’s office and was told that it was not valid because Bruce’s signature was not witnessed, and further that the lawyer’s office did not have a fully executed copy of the will. Brenda testified that she later encountered one of the two witnesses, who told her that they had witnessed Bruce sign the will and that they had attested his signature. Brenda also testified that thereafter she returned to the house and found Version 2.
The two witnesses, who were friends of Brenda and also knew Bruce, testified that they assisted Bruce in executing Version 2 and then added their signatures. Other evidence cast doubt on the evidence of Brenda and the two witnesses. Among other things, the original of Version 1 was never produced. In addition, a handwriting expert engaged by Brian testified that in her opinion Versions 1 and 2 contained copies of the same signature that was said to be Bruce’s. She used a transparency chart of the two signatures from the two wills and discovered that they were exactly the same. She testified that this is impossible, since no one writes one’s signature exactly the same way twice. There will always be a natural variation in the writing. Brian’s theory was that Brenda colluded with Ms Desarmia and Ms Gordon to create Version 2.
However, the trial judge found that Brian’s theory ran counter to Brenda’s conduct after Bruce’s death. Thus, she accepted Brenda’s evidence and held that Version 2 had been validly executed in accordance with s. 4(1) of the Succession Law Reform Act.[2] Brian appealed.
The Court of Appeal allowed the appeal on the ground that the trial judge fell into palpable and overriding error that went to the very core of the outcome of the case. She misunderstood Brian’s position and the importance of the expert evidence. Consequently, she considered the expert evidence to be irrelevant.
With the use of the overlay, the expert demonstrated that the two signatures were copied from one signature. That meant that Bruce could not have signed both Versions 1 and 2 separately with original signatures The trial judge failed to appreciate the significance of the expert evidence. Possible inferences of the evidence were: (a) that Bruce’s signature on Version 2 was a reproduced copy of Version 1; (b) that the original Version 1 could have been converted into Version 2, which the ‘witnesses’ then signed; and (c) that the two witnesses signed Version 1 after Bruce died. Moreover, the Trial judge did not address the question why the original of Version 1 was not produced at trial, or the significance of the inconsistencies in Brenda’s evidence about her discovery of Version 2.
The Court of Appeal also noted that the trial judge made other related errors. She took Brenda’s evidence of Bruce’s intention into account, even though the testator’s intention is not relevant to the formal validity of a will. She also stated that the onus was on Brian to produce the original of Version 1, when the onus lay on Brenda to prove formal validity. Besides, it was Brenda’s inability to produce the original of Version 1 that caused the issue of validity to arise.
On the appeal, Brenda sought to introduce the original of Version 2 as fresh evidence. However, the court held that the evidence did not meet the test for admission of fresh evidence and besides the existence of Version 2 would not resolve the issue of its validity, since it did not explain what happened to the original of Version 1.
The court did not, of course, accuse Brenda and the witnesses of forgery, although Brian suggested it. But that possibility certainly formed the background to the decision. It is understandable that Brenda believed Bruce was leaving her his farm and intended to do so, especially because she had helped him operate the farm for two decades. After all, he had his lawyer draft a will to that effect. She would therefore have been greatly disappointed when she learnt that Bruce had failed to carry out his intention. Thus (and this is only a supposition), she may have been tempted to do what she could to secure the supposed gift. But of course, assuming that Bruce did intend to benefit Brenda, he may have had a change of heart and failed to execute the will for that reason. No one will ever know.
Therefore, the decision of the Court of Appeal is correct in my opinion. A document, even if intended as a will, cannot serve as one unless it has been executed and attested in accordance with the statutory formalities and Brenda failed to prove that this one had been.
The case does highlight that the legal profession can and ought to do much more to educate the Bruces and Brendas and indeed every Tom, Dick, and Harriet, of the importance of having a professional prepare their wills and to have them executed and attested properly. Of course, we need to educate them also not to tamper with the document afterwards.
—
[1] 2021 ONCA 442, reversing 2019 ONSC 5663, 50 ETR (4th) 204. See also the fine comment by my colleague, Bryan Gilmartin, ‘Think You can Hide Behind a Signature? Think Again! – Bayford v. Boese, 2021 ONCA 442’ in WEL Newsletter, July 2021, vol. 11, No. 4.
[2] R.S.O. 1990, c. S.26.
—
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.
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