In the recent decision of Lortie v. Lortie 2023 ONSC 4404, the Ontario Superior Court affirmed, amongst other things, that s. 4(2) of the Succession Law Reform Act does not require that witnesses to a Last Will & Testament sign every page of the document.

Instead, the court must be satisfied that the witnesses subscribing a Last Will & Testament have done so with the intention of attesting the document.

Background

On May 5, 2020, during pandemic social distancing restrictions, a testator executed a Last Will & Testament in the presence of two independent and attesting witnesses.

While the testator rightfully placed his signature at the end of the document, the two attesting witnesses placed their signature or initials on every page of the document aside from the last page.

The two ascribing witnesses further swore affidavits of execution stating that they intended to subscribe the testator’s Last Will & Testament.

Formal Validity Requirements for a Will

Considering the potential implications of the attesting witnesses having not signed the final page of the testator’s Last Will & Testament, the court first looked at s.4(2) of the SLRA which provides that a will is not valid unless:

1. 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;
2. the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
3. two or more of the attesting witnesses subscribe the will in the presence of the testator.

Regarding the witnessing requirements imposed by the SLRA, the court pointed to the fact that while s. 4(2)(a) specifically requires that a testator sign their will at the end of the document, s.4(2)(c) makes no reference to a specific location where the attesting witnesses must subscribe the will.

In this regard, the court further considered and endorsed the principle from the 1925 decision of Re. Donnely that:

“[i]t is not necessary that the signatures of the witnesses be at the foot or end of the will” and “[t]he law does not require that the attestation should be in any particular place, provided the evidence satisfies the Court that the witnesses in writing their names had the intention of attesting.”

Accordingly, the court found that by signing or initialing every page of the Last Will & Testament aside from the final page, in addition to swearing affidavits of execution that they intended to subscribe the testator’s Last Will & Testament as attesting witnesses, the requirements of s.4(2)(c) of the SLRA were satisfied such that the testator’s Last Will & Testament was validly executed.