Will execution – Doug Carroll

Application of the two witness rule for Wills

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.

Jointly owned investments with adult children – Complications abound, so be careful

Joint ownership is one of the most common ways for two or more people to hold property. This includes real estate, as well as personal property such as bank and investment accounts.

The reason investors do this is for simplicity, including the ability to transfer assets to the other owner should one die. With the deceased’s estate bypassed, there could be a probate tax savings of as much as 1.5% of the property value in some provinces.

In the case of spouses who intend to pass property to one another on a first death, this can be a cost-effective and efficient way to transfer property. But when non-spouses are involved, complications arise.

Adding adult children

It can be problematic to add an adult child as a joint owner. In particular, income taxes may be unintentionally triggered, the property may become exposed to the child’s creditors (at least in part), and there is exposure risk if a child’s marriage breaks down.

Beyond that, there can still be significant grey areas. Merely recording title as joint ownership does not necessarily make it so. The actions and intentions of the transferor parent, and surrounding circumstances can affect the nature and extent of the ownership interests being transferred.

These concerns most often surface after the death of the parent, when siblings or other estate beneficiaries may contest the child’s claim to ownership. An Ontario Court of Appeal case from earlier this year illustrates how this can lead to hostile and costly disputes.

Competing sibling and estate claims

Arthur and Hilda Sawdon held most of their bank accounts jointly. After Hilda died in 2004, Arthur was frustrated by delays obtaining the release of the one account that had been in Hilda’s name alone. To avoid this problem for his own estate, he decided to transfer his bank accounts into joint ownership with two of his five adult children. He told them all five should receive equal entitlements.

In 2006, just before the last account transfer, Arthur executed a will naming the Watch Tower Bible and Tract Society of Canada (Watch Tower), a religious charity for Jehovah’s Witnesses, as the residual beneficiary of his estate.

Arthur died in 2007, and a dispute arose over the contents of the bank accounts: about $1 million.

Watch Tower relied on the Supreme Court of Canada’s ruling in Pecore. In principle, when a parent adds an adult child as joint owner, it is presumed that the child holds title as a trustee for the parent’s estate. Watch Tower’s sole witness was the lawyer who drafted Arthur’s will, who claimed Arthur intended the bank accounts to form part of the estate.

Undisclosed to Arthur, the lawyer was an elder with the Jehovah’s Witnesses, and had acted as Watch Tower’s counsel in the past. The trial judge found his evidence neither credible nor reliable.

The appeal court distinguished the facts in Pecore, based on evidence of Arthur’s expressed intentions and his experience with and knowledge of joint ownership. Rather than there being a trust for the estate beneficiaries, from the time the account was opened, the two children on title held the beneficial right of survivorship in trust for all five children.

The estate trustee (who was also one of the sons on title) was awarded partial indemnity of his costs from the estate, with the balance to be recovered from Watch Tower directly. Total costs were about a quarter of a million dollars. It took almost seven years from Arthur’s death to reach this court resolution.

Validity of an electronic Will

At issue

We are well into the digital era, and some might argue that we are overdue for succession laws to catch up with the times.

Most Canadian provinces allow for a Will to be executed in a very low-tech form – an individual’s handwriting. So, why not take our law in the other direction to embrace today’s high-tech world? Some jurisdictions are doing just that, whether by legislation, judicial interpretation or a combination of the two.

Here are some examples that may foreshadow our own future.

Estate of Javier Castro 2013 ES 00140, Lorain County Probate Court (Ohio)

After declining a blood transfusion while at an Ohio medical clinic, Javier Castro discussed with two of his brothers his desire to execute a will. Lacking any paper, one of the brothers transcribed the wishes onto a Samsung Galaxy tablet, which Javier then signed with a stylus. The two brothers witnessed by the same method.

The document was printed after Javier’s death, and offered for probate. The judge did not view the document as an “electronic will” (which apparently would not have been valid in Ohio), instead simply finding that it met the definition of a written document.

NRS 133.085 Electronic will (Nevada)

The State of Nevada specifically authorizes the use of an electronic will. The legislation has been in place since 2001.

Key among the requirements for validity, there may be only one “original, unique, identifiable and unalterable electronic record of an electronic will.” As well, any attempted alteration of the authoritative copy must be readily identifiable, and similarly any copies of the authoritative copy must be readily identifiable as such.

Taylor v. Holt, TN Ct. App., October 31, 2003 (Tennessee)

Steve Godfrey prepared a document on his computer. He invited two neighbours to witness him affixing a computer generated version of his signature to the document, which was then printed, dated and signed by the two witnesses. Mr. Godfrey died a week later, and litigation ensued between his family and his girlfriend (the latter being named as full beneficiary in the impugned document).

The court upheld the document as a will. The computer generated signature fell into the category of “any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record.” (Quotation marks in original, being the relevant extract from Tennessee legislation.)

Re: Yu [2013] QSC 322 (Queensland, Australia)

A distressed man in Queensland, Australia typed a series of entries into the Notes app on his iPhone, and shortly thereafter committed suicide.

The relevant Queensland legislation identifies the requirements for there to be a valid will. Where these requirements are not fulfilled, a court may nonetheless accept a document to be a person’s will if it purports to state the testamentary intentions of the deceased person.

Relying upon the jurisdiction’s Interpretation Act and following a similar fact case that considered a Microsoft Word document (Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594), the court accepted the document created on the iPhone as the deceased’s will.

Practice points

Each province has rules outlining the allowable form a will may take, including the requirement to be in writing. Most provinces also have legislation dealing with the validity of electronic documents and electronic signatures. Such laws generally do not apply to wills, codicils or trusts created by them.
The new Wills, Estates and Succession Act, SBC 2009, c.14 comes into force in British Columbia in March, 2014. Definitions in the section allowing for court interpretation may open the door to documents “recorded or stored electronically.”
Don’t let your estate be the test case for whether your purported electronic will is valid where you live. Consult a lawyer.