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Be Careful About Who Witnesses Your Will!

In the recent decision of Re Estate of Darlene Edwards, the Ontario Superior Court considered the validity of a will that was brought into question after an employee of the testatrix, who signed the will as a witness and was subsequently terminated, refused to confirm that she had in fact witnessed the testatrix sign her will. Instead, the witness took the position that unless the terms of her severance package were revisited, she would not swear that she witnessed the testatrix sign her will.

The testatrix prepared her will during the height of COVID after being diagnosed with cancer. Due to health concerns and restrictions on public gatherings, the testatrix’s daughter drove her to her insurance agency where she met with two employees, including Ms. R, who witnessed the testatrix execute her will.

When the testatrix passed away, her daughter, who was one of the two equal beneficiaries of the estate, contacted Ms. R and informed her that she would require Ms. R to sign an affidavit of execution about witnessing the testatrix’s will. Ms. R originally agreed to provide the affidavit of execution.

Shortly thereafter, the testatrix’s daughter wound up the insurance agency, and in doing so terminated Ms. R’s position. As a result, Ms. R took the position that she would no longer “sign” until the question of her entitlement to severance pay was revisited. At the time, Ms. R had already received 14 weeks of severance pay, more than was required under the Employment Standards Act.

The testatrix’s daughter moved for the directions of the court, and provided evidence that she personally observed Ms. R witness the execution of her mother’s will. In contrast, Ms. R stated that she did not actually see the testatrix sign the document, and only signed the document as a witness because the testatrix was her boss.

Considering the conflicting accounts of what occurred, Justice Ramsay focused on the fact that that Ms. R changed her “tune” and would not sign any documents until her severance package was reconsidered. On this basis, Justice Ramsay found that Ms. R’s testimony was not credible and she was instead motivated by spite.

As a result, the testatrix’s will was found to be valid and executed in compliance with the requirements of the Succession Law Reform Act..


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