Execution of Wills

Preparation and Execution

Compiled by Eric B. Appleby:

Generally

There is a general requirement that a testator know and approve the contents of a will. So where the testator is blind, special modes of proof may be required where the will is probated. See Brewster Estate, Re (1989), 75 Sask.R. 279 (Q.B.).

Signature

A will must be signed by the testator. An unsigned will does not meet the various statutory requirements and is invalid. See Chersak Estate, Re (1955), 99 Man.R.(2d) 169 (Q.B.).

What constitutes Signature

Due to a physical infirmity a testator was only able to place marks on his will. A court held that such marks constituted a signature for purposes of the New Brunswick Wills Act. See Bradshaw Estate, Re (1988), 90 N.B.R.(2d) 194; 228 A.P.R. 194 (Probate Ct.).

Attestation

Attestation is the act of witnessing an instrument in writing at the request of the person signing the instrument. Provincial legislation may require that a will be signed by the testator in the presence of two witnesses. There is a presumption that a will was duly executed and witnessed by persons who knew the statutory requirements, absent evidence to the contrary. See Beaudoin Estate v. Taylor (1999), 8 B.C.T.C. 302 (S.C.).

Curing of irregularity

A court in some circumstances has the power to declare valid a will that is not signed or witnessed as required by the Wills Act. See Felsing Estate, Re (2001), 205 Sask.R. 143 (Q.B.).

What constitutes Undue Influence

A donee who has obtained a gift by fraud or undue influence is liable to have the gift set aside (Halsbury’s Laws of England, 2nd Ed., vol. 34, page 45). In Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289; 457 A.P.R. 289 (Probate Ct.) the court, at paragraph 16, referred to a definition of undue influence as follows:. Thomas Feeney in his text, The Canadian Law of Wills, (3rd Ed.1987) states at p. 42: “The burden of proof of undue influence is on the attackers of the will to prove that the mind of the testator was overborne by pressure exerted by another person. It is not enough to show mere persuasion; the influence exerted on the testator must amount to coercion to be undue influence. Coercion has been defined to mean that the testator has been put in such a condition of mind that if he could speak his wishes to the last he would say ‘this is not my wish but I must do it’.”

Alterations and Deletions

It is well established law that unexecuted interlineations or interpolations made after the execution of the will are of no effect. See Hodder Estate, Re (2002), 210 Nfld. & P.E.I.R. 87; 630 A.P.R. 87 (Nfld. T.D.) at para. 15. Thomas Feeney in his text, The Canadian Law of Wills, (3rd Ed., 1987) states at p. 130: “If, after executing a formal will, the testator desires to alter it in some manner, the alteration . . . must itself be signed and attested in the manner prescribed for a formal will. Furthermore, there is a presumption that a will was altered after execution and not before.”

Presumption of Due Execution

“If a will purports to be properly executed and attested, and there is no doubt that it is the testator’s will, the court will assume that it was properly executed and attested, though the evidence of the attesting witnesses as to the execution may not be satisfactory.” See Theobald on Wills, 13th Ed., para. 274.