At issue
Having two witnesses to a testator’s signature is an important component of the execution process for a person’s Will. In particular, the presence of witnesses provides a level of comfort that assists in dispelling concerns about potential coercion, undue influence or outright fraud, though it is certainly not a guarantee against those concerns.
On the other hand, where this witnessing requirement is not met, it does not necessarily mean that the Will is always invalid.
Wills Act 1837, (U.K.) 7 Will. 4 and I. Vict. C. 26, s. 9.
The source of the witness requirement in common law is the Wills Act 1837 from the United Kingdom. In the original incarnation (courtesy of Wikipedia), in addition to the testator’s own signature, section 9 requires that “the will is made or acknowledged in the presence of two or more witnesses, present at the same time; and each witness attests and signs, or acknowledges, his signature in the presence of the testator.”
Canadian common law provinces
Our common law provinces have legislative provisions similar to this UK law, but differ in their approaches.
‘Strict compliance’ with witnessing (and other execution requirements) remains the state of the law in Newfoundland and Labrador and Ontario (though see an exception below).
‘Substantial compliance’ may be sufficient in provinces where courts have been given power under legislation to admit a non-compliant Will that a judge is content reflects the testator’s wishes. These provinces are British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island and Nova Scotia.
Re Wozciechowiecz (1931 Alta. CA)
The testator signed the Will while in an ill state of health in bed. The first witness signed in front of the testator, but the second witness signed while at the foot of the bed outside of the testator’s field of vision. The execution was determined to be invalid as the testator could not see the second witness at the critical point of signature. Physical presence in the room was not sufficient.
In 2012, the Alberta Wills and Succession Act, SA 2010, c W-12.2 came into force, preserving the witnessing requirements. However, section 37 now allows a court to accept a Will that is not in compliance with execution requirements if there is clear and convincing evidence that it reflects the intentions of the testator.
Re Brown (1954 Ont. SC)
The testatrix executed the Will in the presence of one witness, and the two of them then moved to another room where a second witness was located. The testator and the first witness identified their signatures, and then the second witnessed signed.
The Will was found invalid as the witnesses had not been in the presence of the testator and one another when the testator signed.
Sisson v. Park Street Baptist Church [1998], 24 E.T.R. (2d) 18 (Gen. Div.) (Ontario)
In this case, the lawyer swore that he had prepared a Will in accordance with the written instructions of the deceased. The testator signed in front of the lawyer and his secretary as witnesses. The secretary signed as witness but the lawyer inadvertently did not sign.
In an unopposed court application, the judge confirmed that there was no substantial compliance provision in the Ontario legislation but felt that the court was entitled to develop the common law where there has been substantial compliance with the legislation. In the judge’s opinion, the dangers which the two witness requirement guarded against were not present, and thus the Will was admitted to probate.
Practice points
Though the executor may have broad authority pursuant to provincial law, this is not absolute in nature. There remain a number of obligations under common law that an executor must bear in mind when exercising the authority, the nuances of which can be discussed with a lawyer if problems appear to be arising:
- One can see why lawyers can be sticklers about what may seem to be innocuous details, including who may be a witness, order and placement of signatures, concurrent physical presence and focused attention to the task.
- Even in provinces with substantial compliance rules, it can still be uncertain (and costly) to have to make a formal court application to prove a non-compliant Will.
- Though the exceptions are very rare, all may not be lost in provinces where strict compliance is the rule. Still, it would be best for the Will to have been carefully and properly executed in the first place, without need to resort to the court.