The Formalities of Due Execution in Bayford v Boese

The formalities of due execution of a Will are the core components that underpin the validity of a Will in Ontario.  Described at section 4 of the Succession Law Reform Act, a Will is not valid unless,

1. It is signed at the end by the testator or another person in the testator’s presence and at the testator’s direction;
2. The testator’s signature is made in the presence of two attesting witnesses; and
3. The two attesting witnesses sign the Will in the presence of the testator.

Although the formalities of due execution do not guarantee the validity of a Will, those formalities are a threshold requirement to be met in order for a Will to be valid (subject to minor exceptions at sections 5 and 6 of the Succession Law Reform Act, and the pending introduction of a substantial compliance regime that is beyond the scope of this blog).

These requirements and the inferences that can be drawn from these requirements were considered in a recent decision of the Court of Appeal for Ontario in Bayford v Boese.  In Bayford, the testator, Bruce Boese, retained a lawyer in 2013 to prepare a Will naming his longtime friend, the Respondent Brenda Bayford, as sole estate trustee of his estate and the devisee of a farm property owned by Bruce.

According to Brenda, two copies of this Will had purportedly been executed by Bruce – the first was signed by Bruce, but not witnessed, while the second, purportedly located later by Brenda, appeared to have been both signed and witnessed.  However, original copies of neither version had been located by Brenda or by Bruce’s lawyer and were not produced at trial.

At trial, the Applicant, Bruce’s brother Brian Boese, took the position that the Will was invalid on the basis that Brenda had been unable to produce original copies of either version being propounded, and that there were suspicions with respect to the authenticity of Bruce’s signature on the second and purportedly duly executed version.

Brian led evidence from a handwriting expert which concluded, perhaps significantly, that Bruce’s signature on both versions of the Will was identical. Although Brenda had asserted that two versions of the Will had been prepared, the presence of two perfectly identical signatures suggested one of them may have been a reproduction.

The trial judge ultimately failed to appreciate the significance of the expert’s findings with respect to the signatures in relation to formalities of due execution.  The central issue in dispute in the litigation was whether Bruce had duly executed the Will in the presence of both attesting witnesses.  Although the handwriting expert had given evidence that the signature on the first version was likely to have been copied and reproduced on the second version and therefore not an original signature, the trial judge failed to appreciate the bearing of that finding on the validity of the Will.  The Will was found to be valid at first instance.

The decision was ultimately overturned on appeal.  The trial judge’s failure to acknowledge the implications of the expert evidence relating to the formalities of due execution was found to be a palpable and overriding error that had a profound effect on the finding of validity.  Had the trial judge appreciated the expert’s finding that the signature on the second, purportedly valid, version of the Will was a copy of the signature on the first version, the trial judge might then have inferred that the formalities of due execution had not been met.

As previously mentioned, the requirements of due execution require a testator to sign the Will in the presence of two attesting witnesses, both of whom also sign the Will in the testator’s presence in succession.  The expert evidence leads to an inference that Bruce’s signature from the first version of the Will had been copied and applied to the second version, perhaps after the fact, and therefore not signed by him in the presence of the attesting witnesses.