All About Estates

The Continuing Importance of the Presumption of Due Execution

Today’s blog was written by Christopher Cook, Student-At-Law at de VRIES LITIGATION LLP

The Presumption of Due Execution

When a court is asked to admit a will to probate, the court must ensure, among other things, that the testator knew and approved of the contents of the will. While the propounder of the will has the legal burden with respect to establishing knowledge and approval, they are aided by the “presumption of due execution.” In short, where the evidence establishes that the testator executed the will in accordance with the requisite formalities (e.g., signed in the presence of two witnesses), a rebuttable presumption arises that the testator knew and approved the contents of the will. At this point, the onus shifts to the party challenging the will to rebut the presumption.

The fundamental importance of the presumption of due execution was recently illustrated in Grace (Re).

The Background

Ms. Grace executed a last will and testament on April 30, 2021. She appointed her father as executor of her estate. After Ms. Grace passed away on May 16, 2021, her father applied for a grant of probate. In response, Ms. Grace’s mother filed a notice of dispute, challenging the validity of the will. Among other things, the mother alleged that Ms. Grace neither read nor knew the contents of the will.

The matter was initially heard by Justice Lyster on March 28, 2022. During the hearing, Justice Lyster sided with the mother. Her Honour found that the evidence before the court was “not sufficient to prove that the will was read by or to Ms. Grace,” meaning the father had failed to prove that Ms. Grace knew and approved of the will’s contents. Following the hearing, on April 26, 2022, Justice Lyster issued a judgment ordering that the father’s probate application be referred to the trial list for proof of the will in solemn form.

Unfortunately, Justice Lyster’s judgement did not take into account the presumption of due execution. Because Ms. Grace had executed her will in compliance with the relevant formalities, and in the presence of two witnesses, the presumption of due execution was raised. This meant that the onus should not have been on the father to prove knowledge and approval, but rather on the mother to rebut the presumption of knowledge and approval.

As it turned out, neither counsel during the March 28, 2022 hearing had advised Justice Lyster of the relevant authorities discussing the presumption of due execution. The father quickly applied for a reconsideration of the decision.

Reconsideration

The father’s reconsideration application was heard, again by Justice Lyster, on May 31, 2022, just over a month after the original judgment had been issued. Because the order arising from the April 26, 2022 decision had not yet been entered into the registry, Justice Lyster had the discretion to reconsider, and even reverse, the decision.

When considering whether to reconsider a decision, the court is guided by the overarching consideration of what is in the interests of justice in the unique circumstances of each case. In this case, it was in the interests of justice that the court reconsider the ApriI 26, 2022 decision. Justice Lyster noted that Her Honour had proceeded on an inaccurate understanding of the law in referring the father’s probate application to the trial list. If the authorities discussing the presumption of due execution had been raised during the original hearing, they would have substantially altered the result. In these circumstances, refusing to reconsider the decision “would risk a miscarriage of justice.”

Reversal

Applying the presumption of due execution to the previous facts, Justice Lyster reversed the April 26, 2022 judgement and granted the father’s probate application. Ms. Grace had signed her will in the presence of two witnesses. Her will also contained an attestation clause. In these circumstances, the presumption of due execution had been raised, meaning the mother had the onus of rebutting the presumption that Ms. Grace knew and approved of the contents of the will.

The mother’s only evidence was that she had asked Ms. Grace whether she had read the will, to which Ms. Grace said no. However, this evidence was contradicted by the evidence of the father and one of witnesses, both of whom recounted that Ms. Grace had signed the will after being asked “if these were her wishes,” to which Ms. Grace said yes. Given the conflicting evidence, Justice Lyster found that the mother had failed to rebut the presumption of due execution. Her Honour therefore inferred that Ms. Grace knew and approved the will’s contents.

Takeaway

In addition to demonstrating the foundational importance of the presumption of due execution, Grace (Re) is a rare illustration of the court’s ability to reconsider and reverse its own decision. For more information about this discretionary power, please see Gillian Fournie’s post: “When Will a Court Reconsider Its Decision?

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