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Subscription of Will by Witnesses

1. Introduction

The statutory requirements for the execution of wills are raised in the cases from time to time, including the provisions about the subscription by the witnesses. The execution of wills became problematic during the COVID-19 lockdown. The execution of the will in the recent case, Lortie v Lortie,[1] happened before execution by video conference became possible.

2. Facts

The testator had made a will in 2017 that was prepared by his solicitor. Early in 2020 he contacted the lawyer and instructed him to draft a new will to reflect changes that he wanted to make to the 2017 will. The solicitor prepared the Will, and it was ready to be executed in early May 2020. Because videoconferencing was not yet possible then, the solicitor sent a copy of the Will to the testator with written instructions about how it should be executed by the testator and attested by the witnesses.

In accordance with the instructions, on 5 May 2020 the testator signed the Will in the presence of his two neighbours, Claire Riel and Irene Pelletier. They then attested the Will. Ms Pelletier initialed every page except the last page of the Will. Ms Riel signed the first two pages and initialed the remaining pages, except the last page.

The testator then returned the executed copy of the Will to the solicitor with a handwritten letter stating that he was returning the duly signed Will. He died in September 2021. The solicitor only discovered the problems with the execution after the testator’s death.

The named executors brought an unopposed application for a declaration and order that the Will dated 5 May 2020 met the formalities of execution imposed by the Succession Law Reform Act.[2]

The two witnesses swore affidavits in which they confirmed that they intended to subscribe the Will as attesting witnesses.

3. Analysis and Judgment

Justice Bell began by reviewing the execution formalities for a formal will. Section 4(2) of the SLRA provides in summary form that a will is not valid unless:[3]

(a)  it is signed at the end by the testator;

(b) the testator makes or acknowledges his signature in the presence of two or more attesting witnesses; and

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

Further, section 4(6) provides that if witnesses are required by section 4, no form of attestation is required.

The issues were:

(i)  whether Ms Pelletier’s initialing of the Will was sufficient attestation; and

(ii) whether the witnesses’ subscriptions have be placed at the end.

His Honour quoted from Hindmarsh v Charlton[4] in which Lord Campbell, the Lord Chancellor said:

I will lay down this as to my notion of the law: that to make a valid subscription of a witness there must either be the name or some mark which is intended to represent the same.

Thus, the signatures of the witnesses are not required; their initials will suffice. in Re Dunlop[5] Widdifield J, followed Hindmarsh on this point. Consequently, the fact that Ms Pelletier subscribed using only initials did not invalidate the will.

Further, his Honour relied on Connor Estate v Worthing,[6] in which the court considered formalities provisions that are substantially identical to section 4 of the SLRA. In that case the witnesses initialled each page and printed their names on the last page but did not sign it because there was no signature line. The Judge at first instance opined that whereas the legislation requires the testator to sign, it only requires the witnesses to ‘subscribe’. Thus the Legislature ‘presumably intended something different’.[7] The court held that the subscription of the witnesses was sufficient.

Justice Bell noted further that while section 4(2)(a) of the SLRA requires the testator to sign ‘at the end’, section 4(2)(c) does not say where the witnesses must subscribe the will. He concluded therefore that the witnesses’ subscriptions do not have to be made at the end of the will, but can be made anywhere in the will, so long as the witnesses do so in the presence of the testator and with the intention of attesting his signature. On this point he relied on Re Dunlop,[8] in which Widdifield J came to the same conclusion.

Since the testator died in 2021, the court could not have validated his will under the validating provision in section 21.1 of the SLRA, since it came into force on 1 January 2022, i.e., after his death. But the case is significant because, although that section is now in force, a court does not have to rely on it in circumstances such as arose in the Lortie case.

It may be of interest that in Connor Estate v Worthing,[9] the courts considered and distinguished the earlier British Columbia Supreme Court decision in Bolton v Tartaglia.[10] In that case a notary prepared the testator’s will, and it was executed in the notary’s office. The notary and his assistant were to be the witnesses. After the testator initialled the first two pages of the three-page will and signed the will at the end on the third page. Then the two witnesses each initialled the first two pages and placed their stamps on the third, signing page. Then the notary signed his name next to his stamp, but his assistant failed to do so. Hood J concluded that therefore there was only one subscribing witness, so that the will was invalid. Although he reproduced the quotation from Hindmarsh that I have included above, Hood J concluded that the assistant’s stamp was not a facsimile of her handwriting and could therefore not be regarded as a signature.

It should be noted that both the notary and his assistant placed their initials next to the testator’s on the first two pages of the will. Hood J did not consider whether those initials constituted a mark that was made to indicate the witnesses’ intention thereby to attest the testator’s signature.

In contrast, in Payne v Payne,[11] the witnesses had only printed their names instead of signing. The Court of Appeal for England and Wales concluded that having done so, the natural inference to draw was that they thereby intended to write their names as witnesses of the testator’s signature, and that sufficed as a valid subscription. In typical English fashion all parties then had a cup of tea together.[12]

In my opinion the Payne, Conner Estate, and Lortie decisions are correct and the decision in Bolton should be considered as doubtful authority.

After finishing this blog I learnt that my colleague, Evan Pernica, had already posted a fine blog on the case.[13] This might have made my blog supererogatory. However, I concluded that my blog touches on some matters that Evan’s did not cover. So I think the overlap is minimal.

[1]    2023 ONSC 4404.

[2]    RSO 1990, c S.26 (‘SLRA’).

[3]    I have italicized a couple of words that are relevant to the decision.

[4]    (1861), 8 HLC 160 (HL).

[5]    1928 CarswellOnt, 254, [1929] 1 DLR 542.

[6]    2020 BCSC 150, affirmed 2021 BCCA 231. See my blog of this case, https://welpartners.com/blog/2021/09/formalities-probate-and-rectification-conner-estate-v-worthing/.

[7]    Ibid., paras 33-35 on appeal.

[8]    Supra.

[9]    Supra.

[10]   2000 BCSC 576.

[11]   [2018] EWCA Civ 985, paras 26-27.

[12]   Ibid. para 26.

[13]   Evan Pernica, https://welpartners.com/blog/2023/08/do-witnesses-need-to-sign-every-page-of-a-last-will-testament/.


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