Video evidence of the execution of a Will does not guarantee its validity. In the case of Tucker v. Tucker Estate, 2009 CANLii 1664 Ont. S.C., the court dealt with a situation where the deceased’s execution of her Will and the witnesses’ confirmation were videotaped. The court reports that the videotape showed that: (a) the deceased had signed the Will; (b) that she had read it out loud; (c) it was the same wording as the handwritten Will that was being contested; (d) the witnesses signed the same paper in the presence of each other and the deceased; and (e) the witnesses were present for the signature of the Will. Based on the foregoing, the Will appeared to have met the formal requirements for the due execution of a will.
The court stated that, on its face, the video would indicate and support the presumption that the deceased knew and approved of the contents of the Will and had the necessary capacity because the video was able to show that the Will was duly executed with the requisite formalities after having been read over to or by the deceased who appeared to understand it. However, the court found that, based on the totality of factual evidence before the court, the circumstances were suspicious, and these led the court to question capacity. The court found undue influence and had a strong concern for a lack of testamentary capacity based on the circumstances surrounding the Will. Ultimately, the court found that the plaintiff could not show that the deceased had the requisite testamentary capacity to execute the Will, and the evidence in all the circumstances led to a clear inference of undue influence upon her sufficient to meet the burden of the defendant on a balance of probabilities. The court therefore determined that the Will was not valid.The case reminds us of the importance of context in considering the validity of a Will, and the circumstances surrounding the drafting and execution of a will.