All About Estates

Inadequate Execution of a Will led to Court Dispute

In Bayford v. Boese 2019 ONSC 5663 the deceased Mr. Boese was the sole owner of a farm in Eastern Ontario he inherited from his parents. He never married and had no children. For two decades prior to his death, Mr. Boese was assisted in the operation of the farm by his friend, Ms. Bayford. Under a will made by Mr. Boese two years earlier, the farm property was to be transferred to Ms. Bayford. The residue of the deceased’s estate was then to be divided equally between the children of his brother and late sister.

The deceased’s brother challenged the will.

The brother did not dispute that the will reflected the testamentary instructions given by deceased to his solicitor. The brother did not allege that the will was procured by undue influence exerted by Ms. Bayford, or anyone. The brother did not allege that Ms. Bayford, or anyone, coerced the deceased to make a new will, leaving the farm to Ms. Bayford. The brother raised no issue with respect to Bruce’s capacity to make a new will when he did.

Rather, the brother challenged the will on two grounds. First, he alleged that the deceased did not sign the will. Second, the brother alleged that, if the signature on the will did not belong to the deceased, then he did not sign it in the presence of witnesses. He asserted that the will did not comply therefore with the provisions of the Succession Law Reform Act, R.S.O. 1990, c. 26 (“SLRA”), governing the execution of a will, that it be signed, and witnessed by two or more individuals. The brother asserted, after his father’s death, Ms. Bayford found a copy of the will signed but not witnessed. Ms. Bayford then colluded, connived, or conspired with two individuals to procure the will by asserting that they witnessed it being signed by the deceased. In the alternative, the brother asserted that the deceased’s signature was forged on the will to which two individuals signed their names as witnesses.

The brother asserted that a will executed by Mr. Boese about 10 years earlier was the deceased’s valid will and should govern the distribution of the deceased’s estate. In this will, the deceased named his parents as sole beneficiaries of the estate. The deceased was pre-deceased by both of his parents. Had the deceased not made a new will, his estate would have passed on an intestacy and his siblings would have each inherited 50 percent of the Estate.

The will filed with the Court was dated. The date was typed and appeared on the third and final page of the document. It had the word “DRAFT” stamped on every page and it included the deceased’s signature and those of the two witnesses.

Ms. Bayford had understood that the deceased was going to revise an earlier will and leave the farm property to her. Ms. Bayford’s evidence is that she was never told by Mr. Boese that he had made the new will.

In the days and weeks following Mr. Boese’s death, Ms. Bayford searched for a will and found a copy of the will that had Mr. Boese’s signature without witness signatures (“Version 1”). Ms. Bayford’s evidence is that she took Version 1 to the lawyers’ office, fully expecting that the office would have the original will signed by the deceased with the signatures of two witnesses. Ms. Bayford testified that she was surprised to find out that the lawyers’ office did not have that document.
From a conversation with one of the witnesses several weeks after death, Ms. Bayford learned that two individuals had witnessed the deceased’s signature on the will. After that conversation, Ms. Bayford returned to the farm and searched again for the will. She found the new will with Mr. Boese’s signature and the signatures of the witnesses (“Version 2”).

Ms. Bayford asserted that the will was executed in compliance with the provisions of the SLRA and is valid. The brother alleged that upon finding only Version 1, Ms. Bayford persuaded two individuals to sign their names as witnesses.

Previous case law had established that the executor of the will had the burden to prove proper execution, the deceased’s knowledge and contents of the will, and testamentary capacity. The Court found that Ms. Bayford as executor had met her onus of establishing that the will was (a) signed by the deceased in the presence of two individuals, and (b) executed in accordance with the requirements of the SLRA. The Court concluded the will was valid and it was Mr. Boese’s last will and testament.

As a basis for its decision, the Court found the Ms. Bayford’s testimony credible as well as those of the two witnesses to the will, despite some inconsistencies. The presence of two wills, the Court found, was more a result of the deceased’s inattention to paperwork and his lawyer’s lack of follow thru in a period where co-incidentally he was preparing to retire. Curiously,  a forensic document examiner was hired by the brother, but her evidence was determined to be equivocal from the outset and the Court treated her evidence as a distraction, not being useful to the Court in making its determination.

This case serves as a good reminder that anything less than full and proper execution of your will can lead to considerable grief to your executors after you are gone!

Happy Reading

About Steven Frye
Baker Tilly WM LLP is a leading, independent audit, tax, and business advisory firm based in Vancouver and Toronto, serving clients across Canada. Drawing on well-trained teams across a variety of disciplines, we ensure the alignment of our professional’s skills and experience with client requirements, resulting in exceptional service and business outcomes.

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