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The Presumption of Due Execution: Re Grace Estate

1. Introduction

Re Grace Estate[1] is a rather unusual case. It seems that counsel at the original hearing failed to advise the court of the presumption of due execution,[2] usually referred to by its Latin name, omnia praesumuntur rite esse acta.[3] That led the court to reach an incorrect decision[4] and the executor applied for a reconsideration. The case is important because it serves as a reminder of that very basic presumption, and because it reviews the law on reconsidering a decision.

In the context of proving a will the court can apply the presumption if the testator has complied with the statutory formalities of signing the will in the presence of two witnesses who then attest her signature in her presence. The court can then hold the will to be valid.[5] Some cases say that the presumption can be applied if the will contains a proper attestation clause.[6] However, the leading case, Re Laxer,[7] held that the presumption can be applied even in the absence of such a clause. It can also be applied even though the witnesses cannot be traced.[8]

2. Facts

The executor was the father of the testator, and he made an application for proof of his daughter’s will in solemn form. The testator’s mother opposed the application on the ground that the testator did not read or know the contents of the will before she signed it, that she signed the will under suspicious circumstances, and that she may have lacked capacity.

In the first hearing,[9] Justice Lyster held that the mother failed to establish suspicious circumstances but that the executor failed to prove that the testator read the will or had it read to her. In her opinion this meant that the executor did not have the benefit of the presumption of testamentary capacity. Therefore, he had to prove that the testator had capacity and knew and approved the contents of the will. The executor applied for reconsideration of her decision.

3. Reconsideration

Justice Lyster concluded that this was a proper case for her to exercise her discretion to reconsider her decision since the order arising from the first decision had not yet been entered, so the court was not functus officio. The case was not one of hearing fresh evidence, as is often the case, but rather one in which, as the applicant submitted (para 8) that ‘the parties failed to advise the court of a line of binding authority directly on point which could substantially alter the result. While she acknowledged that the discretion to reconsider must be exercised sparingly, she held that it was in the interests of justice to reconsider her decision in the unique circumstances of this case.[10]

4. Application of the Presumption

In reaching her original decision, Justice Lyster relied on this passage in the decision of the Supreme Court of Canada in Vout v Hay:[11]

… Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

In her second decision, Justice Lyster candidly acknowledged that she took the emphasized words to mean that the propounder of a will has to establish that the will was read over to or by the testator before the presumption of due execution applies.

Then she relied on a case that was not referred to at the first hearing, Yen Estate v Chan.[12] In that case the court referred[13] with approval to the decision of the Ontario Court of Appeal in Re Laxer,[14] which quoted and applied the following paragraph from the decision of Lindley LJ in Harris v Knight:[15]

The maxim, “Omnia praesumuntur rite esse acta,” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.

In Yen Estate the Court of Appeal agreed with the trial judge that Vout v Hay did not do away with the presumption. It applied Laxer because: (a) Vout does not say that the presumptions are no longer valid; (b) the issue of due execution was raised only tangentially in that case; and (c) it cannot be assumed that the Supreme Court got rid of the long-standing presumption without mentioning it or explaining why they were doing so when it was unnecessary to resolve the issue before them. In fact, in Vout the court did not need to consider the presumption of due execution because there was direct evidence that the will had been executed properly.

In Yen Estate the Court of Appeal also agreed (para 18) with the following passage from Laxer,[16] which the trial judge in Yen Estate had endorsed:

The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law.

Justice Lyster noted that the statutory formalities for a valid will were observed because the testator signed the will in the presence of two witnesses, who then attested her signature. Further, the will contained an attestation clause. She held (para 27), ‘These facts give rise to a rebuttable presumption that Ms. Grace knew and approved the contents of the will. Moreover, since there were no suspicious circumstances, the onus was on the mother to rebut the presumption and she failed to do so. She did ask the testator if she read the will and the testator said that she did not. But after the witnesses arrived, her father asked her if the will contained her wishes. She said yes, and this evidence was confirmed by one of the witnesses.

Thus, Justice Lyster held that the will had been proved in solemn form and granted probate to the executor.

[1] 2022 BCSC 1283.

[2] Ibid., para 4.

[3] The Latin phrase means, it is presumed that all things have been properly and correctly done.

[4] Indexed at 2022 BCSC 653.

[5] Re Riva (1978), 3 ETR 307 (Ont Surr Ct).

[6] See, e.g., Kirpalani v Hathiramani (1992), 46 ETR 256 (Ont Gen Div); Beniston Estate v Shepherd (1996), 16 ETR 2d 71 (BCSC).

[7] [1963] 1 OR 343, 37 DLR 2d 192 (CA).

[8] Re Riva, supra.

[9] 2022 BCSC 653.

[10] Justice Lyster relied, inter alia, on Dowell v Hamper, 2019 BCSC 1592; Signcorp v Vancouver (City) (1986), 9 BCLR 2d 238 (SC); Menzies v Harlos (1989), 37 BCLR 2d 249 (CA); and Hodgkinson v Hodgkinson, 2006 BCCA 158.

[11] [1995] 2 SCR 876, 1995 CarswellOnt 186, para 26. Emphasis supplied by Justice Lyster.

[12] 2013 BCCA 423.

[13] Ibid., para 14.

[14] Footnote XX, supra, para 28.

[15] (1890), 15 PD 170 at pp 179-80.

[16] Supra, para 35, per Schroeder JA.


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