Ontario Court Rectifies a Will Witnessed by a Single Beneficiary Who Did Not Attest the Document
Re: O’Neill Estate https://canlii.ca/t/k43bg
In the recent decision of Re: O’Neill Estate[1], the Ontario Superior Court validated and enforced a last will & testament (the “Will”) under sections 21.1 and 12(3) of the Succession Law Reform Act[2] (“SLRA”) despite the Will being witnessed by a single beneficiary who did not attest the Will but did provide oral evidence relating to the execution.
Background
The deceased prepared her Will only two months before her death. The Will was later signed by two witnesses who were not present for the execution and did not attest at the same time that the Testator signed.
Accordingly, the Will failed to comply with the formalities of s.4(2) of the SLRA[3] that require a will to be executed in the presence of two attesting witnesses who subscribe the will in the testator’s presence at the same time.
In response, the deceased’s brother, a beneficiary under the Will, brought an application to validate the Will under s.21.1 of the SLRA[4] on the basis of affidavit evidence that he witnessed the deceased execute the impugned Will.
Issue #1 – Validating the Will Under s.21.1 of the SLRA
S.21.1 of the SLRA empowers the court to order that a testamentary document or writing is a valid last will & testament despite failing to comply with formal requirements of execution where the court is satisfied that the document sets out the testamentary intentions of a deceased.[5]
Relying on the brother’s uncorroborated and uncontested evidence, the court accepted that the brother had witnessed the deceased execute the Will but avoided attesting his signature because of his conflicting status as a beneficiary.
Issue #2 – The Effects of a Beneficiary Acting as a Witness under s.12 of the SLRA
In accepting the brother’s evidence that the Deceased executed the Will, the further issue arose that any bequest or disposition to a witness is presumptively void under s.12(1) of the SLRA.[6]
This issue was then disposed of by the court under s.12(3) of the SLRA[7] which authorizes the upholding of bequests to a witness where the court is satisfied that no undue influence was exerted on the testator.
Concluding Comments
As a result, the court validated the Will under s.21.1 by relying on the brother’s uncontested evidence relating to execution, and upheld the disposition provided to the brother under the exception provided by s.12(3) of the SLRA despite his status as the only witness.
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[1] Re: O’Neill Estate, 2024 ONSC 2228.
[2] Succession Law Reform Act, RSO 1990, c S.26.
[3] Ibid at s.4(2).
[4] Ibid at s.21.1.
[5] Ibid; Re: O’Neill Estate, 2024 ONSC 2228, at para 2.
[6] Succession Law Reform Act, RSO 1990, c S.26, s 12(1).
[7] Succession Law Reform Act, RSO 1990, c S.26, s 12(3).
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Written by: WEL Partners
Posted on: May 28, 2024
Categories: Commentary, WEL Newsletter
Re: O’Neill Estate https://canlii.ca/t/k43bg
In the recent decision of Re: O’Neill Estate[1], the Ontario Superior Court validated and enforced a last will & testament (the “Will”) under sections 21.1 and 12(3) of the Succession Law Reform Act[2] (“SLRA”) despite the Will being witnessed by a single beneficiary who did not attest the Will but did provide oral evidence relating to the execution.
Background
The deceased prepared her Will only two months before her death. The Will was later signed by two witnesses who were not present for the execution and did not attest at the same time that the Testator signed.
Accordingly, the Will failed to comply with the formalities of s.4(2) of the SLRA[3] that require a will to be executed in the presence of two attesting witnesses who subscribe the will in the testator’s presence at the same time.
In response, the deceased’s brother, a beneficiary under the Will, brought an application to validate the Will under s.21.1 of the SLRA[4] on the basis of affidavit evidence that he witnessed the deceased execute the impugned Will.
Issue #1 – Validating the Will Under s.21.1 of the SLRA
S.21.1 of the SLRA empowers the court to order that a testamentary document or writing is a valid last will & testament despite failing to comply with formal requirements of execution where the court is satisfied that the document sets out the testamentary intentions of a deceased.[5]
Relying on the brother’s uncorroborated and uncontested evidence, the court accepted that the brother had witnessed the deceased execute the Will but avoided attesting his signature because of his conflicting status as a beneficiary.
Issue #2 – The Effects of a Beneficiary Acting as a Witness under s.12 of the SLRA
In accepting the brother’s evidence that the Deceased executed the Will, the further issue arose that any bequest or disposition to a witness is presumptively void under s.12(1) of the SLRA.[6]
This issue was then disposed of by the court under s.12(3) of the SLRA[7] which authorizes the upholding of bequests to a witness where the court is satisfied that no undue influence was exerted on the testator.
Concluding Comments
As a result, the court validated the Will under s.21.1 by relying on the brother’s uncontested evidence relating to execution, and upheld the disposition provided to the brother under the exception provided by s.12(3) of the SLRA despite his status as the only witness.
—
[1] Re: O’Neill Estate, 2024 ONSC 2228.
[2] Succession Law Reform Act, RSO 1990, c S.26.
[3] Ibid at s.4(2).
[4] Ibid at s.21.1.
[5] Ibid; Re: O’Neill Estate, 2024 ONSC 2228, at para 2.
[6] Succession Law Reform Act, RSO 1990, c S.26, s 12(1).
[7] Succession Law Reform Act, RSO 1990, c S.26, s 12(3).
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