My colleague Joanna Lindenberg and I had previously blogged on the case of Bayford v. Boese (the decision and the costs decision, respectively) where the court upheld the validity of a challenged will (the second of two ‘versions’ of the same will). However, in Bayford v. Boese, 2021 ONCA 442 the Court of Appeal has set aside the lower court’s decision and invalided the will.
The deceased Bruce Boese had no wife and no children but did own a farm. There was no dispute that he gave instructions to his lawyer to prepare a will in 2013 that left this farm to his friend Brenda Bayford. A draft will was prepared but was never finalized. Instead, there are two versions of the signed draft will: Version 1 (which is only signed by the deceased) and Version 2 (which is signed by the deceased and two witnesses – both friends of Brenda).
The deceased’s brother Brian Boese, who would otherwise inherit half of his brother Bruce’s estate, challenged the will (it is a good thing that this decision did not need to be anonymized, as all of the players’ initials are “B.B.”).
The lower court accepted Brenda’s position that she had initially only found Version 1 (which was in a filing cabinet). However, after she attended at the lawyer’s office and discovered they did not have a fully executed copy of the will, she performed a more extensive search and found Version 2 on top of a kitchen cupboard. Brian, by contrast, argued that Version 2 had been created after death (after Brenda learned that an unwitnessed will would be invalid – as two witnesses are required for the formalities of a non-handwritten will to be valid).
The original Version 1 and Version 2 were not available at trial. Brian put forward a handwriting expert who compared the signatures in photocopies of the two Versions. The lower court noted that her evidence was that she could not identity nor eliminate Bruce as the person who signed the wills and that it was “completely likely” that Bruce’s signature in both Versions are copies of the same signature. The court also found that the expert also testified that nothing about the documents led her to consider that the signature on one of the documents was traced from the other.
In the lower court’s view, it was difficult to understand how the expert’s opinion helped Brian. The Court of Appeal found that this was a serious error. In fact it rose to the high-threshold of a “palpable and overriding error” – the strict standard that governs how lower court’s factual findings are reviewed.
The handwriting expert went further than stating it was “completely likely” that the signatures in both Versions were copies of the same signature – she stated that they were copies of the same signature. The lower court, the Court of Appeal noted, did not appreciate the significance of this finding as no one signs their signature exactly the same way twice. That meant that the deceased could not have signed Versions 1 and 2 separately with original signatures. So either Version 2’s signature was a reproduced copy of Version 1’s signature – or Version 1 was “converted” into Version 2 by having the witnesses sign it.
This casts Brenda’s inability to produce the original Version 1 – as well as the fact that she had a shifting story on what happened to the original – in a more damning light (given the allegation is that Version 1 became Version 2). Ultimately, the Court of Appeal found it was Brenda’s onus to prove the will which the handwriting expert evidence had rebutted (there were also discrepancies in the evidence on how the will was purportedly signed).
The Court of Appeal also dismissed Brenda’s motion to introduce fresh evidence: she had located the original Version 2. While an original Version 1 would be helpful, being able to review Version 2 would not be germane.
Accordingly, the Court of Appeal allowed the appeal and found Version 2 to be invalid. The Court of Appeal often defers to the fact-finding of the lower court judge (or jury, if a jury is the tryer of fact) but where there is a clear misapprehension of expert evidence, as there was here, the Court of Appeal had to step in.