All About Estates

One Will, Two Versions

Bayford v. Boese is an interesting case which serves as a reminder of the statutory requirements for due execution of a will. It also provides a thorough analysis of how judges dissect a witness’ evidence and generally determine who to ultimately believe at trial.

Bruce Boese (the “Deceased”) was the sole owner of a 22-acre farm in Arnprior, Ontario (the “Farm”) when he died in June 2015. The Deceased executed a will in August 2013 (the “2013 Will”) which provides, in part, that the Farm be transferred to the Deceased’s friend and estate trustee, Brenda Bayford (“Brenda”). Brenda assisted the Deceased with the operation of the Farm for approximately 20 years. Brenda was also named as the Deceased’s attorney for property in 2009. Pursuant to the 2013 Will, the residue of the Deceased’s estate is divided equally between two children of the Deceased’s brother, Brian Boese (“Brian”), and the two children of the Deceased’s late sister, Rhonda McTeer (“Rhonda”) (who died in early 2013). The Deceased never married and had no children.

The 2013 Will is dated August 15, 2013 – the date is typed and appears on the third and final page of the document. It has the word “DRAFT” stamped on every page and it includes the Deceased’s signature and those of the two witnesses, Sophie Gordon (“Ms. Gordon”) and Colleen Desarmia (“Ms. Desarmia”).

Brian challenged the 2013 Will and asserted that it does not comply with the provisions of the Succession Law Reform Act, R.S.O. 1990, c. 26 (the “SLRA”) governing the due execution of a will.  Brian’s theory was, in part, that after the Deceased’s demise, Brenda found a copy of the 2013 Will that was signed but not witnessed; she then colluded or conspired with the two witnesses of the 2013 Will to have it procured. In the alternative, Brian asserted that the Deceased’s signature was forged on the 2013 Will.

Brian went on to claim that a will executed by the Deceased in 1992 (the “1992 Will”), which was prepared by Timothy Colbert (“Mr. Colbert”), the long-time lawyer of the Deceased, his late parents and Brian, is the valid last valid and testament. In the 1992 Will, the Deceased’s parents are named as the sole beneficiaries. The Deceased was pre-deceased by both of his parents, so if the 1992 Will was the valid last will and testament, the Deceased’s estate would pass on an intestacy such that Brian and Rhonda would have each inherited 50% (as Rhonda died in 2013, her share would have gone to her two daughters). These daughters (as well as Brian’s children) are residuary beneficiaries under the 2013 Will.

Brenda’s evidence was that the Deceased discussed revising the 1992 Will to leave the Farm to her. Following the Deceased’s death, she searched for a will and found a copy of the 2013 Will that had the Deceased’s signature, but not the witness signatures (“Version 1”). Brenda’s evidence was that she took Version 1 to Mr. Colbert’s office, expecting him to have the original (executed and witnessed) 2013 Will in his possession (he did not).

From a conversation with Ms. Desarmia several weeks after the Deceased’s death, Brenda learned that Ms. Gordon and Ms. Desarmia had witnessed the Deceased’s signature on the 2013 Will.  After that conversation, Brenda returned to the Farm and searched again for the will. She found the 2013 Will with the Deceased’s signature and the signatures of the witnesses (“Version 2”).

Brenda asserts that the 2013 Will is valid and executed pursuant to the requirements set out it in the SLRA. Brian alleges that upon finding only Version 1, Brenda persuaded Ms. Gordon and Ms. Desarmia to sign their names as witnesses. Brian asked the court to find: (a) he has rebutted the presumption of validity of the 2013 Will; (b) without that presumption, Brenda has failed to prove that the 2013 Will is valid; and (c) the 1992 Will is the valid last will and testament.

The court reviewed the law regarding the execution of wills. In particular, Subsection 4(1) of the SLRA sets out three requirements that must be met for a will to be valid: (a) at its end (the will) is signed by the testator or by some other person in his or her presence and by his or her direction; b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and (c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

The court also cited the Supreme Court of Canada decision, Vout v. Hay, and noted that the propounder of a will has the burden to establish on a balance of probabilities due execution, the testator’s knowledge, and approval as to the contents of the will, and testamentary capacity.

In its analysis, the court relied upon Brenda’s evidence that the existence of Version 1 does not impact upon the validity of Version 2. Justice Corthorn held that Brenda’s uncontradicted evidence that she initially only found Version 1 of the 2013 Will and expected that the original and fully-executed 2013 Will was at the lawyer’s office was completely reasonable (Version 1 was also stamped “DRAFT”, making Brenda’s conclusion all the more rational). The court also noted that the Deceased’s testamentary wishes, as expressed in the 2013 Will, aligned with the narrative surrounding his friendship with Brenda and her connection to the Farm, as well as the Deceased’s desire to avoid an intestacy (which would have resulted had the Deceased not changed his 1992 Will). The court also found that the 2013 Will accorded with the Deceased’s instructions. Specifically, the court accepted the evidence of Mr. Colbert’s long-time legal assistant, Tracey Fraser, and stated: “As of 2013, Ms. Fraser had worked in the law office of Mr. Colbert for 18 or 19 years…Ms. Fraser’s uncontradicted evidence is that she prepared the 2013 Will based on instructions she received, through dictation, from Mr. Colbert.”

In addition, Ms. Desarmia testified that “a couple of weeks” after the Deceased passed away, she met Brenda by chance in downtown Arnprior.  On that occasion, Brenda mentioned that she could only find Version 1 and  Ms. Desarmia responded by informing Brenda of the existence of Version 2. Brenda testified that within half an hour of concluding her conversation with Ms. Desarmia, she returned to the Farm to search again for the 2013 Will. Her evidence, which the court accepted, is that she: (a) re-checked the drawers of the filing cabinet; (b) found a ladder in the house and checked at higher levels in the kitchen; and (c) found Version 2 in an envelope on top of a cupboard in the kitchen.

The theory of Brian’s case is that Brenda colluded, conspired, or connived with Ms. Desarmia and Ms. Gordon to create Version 2.  The court held that Brenda’s conduct in the days and weeks following Bruce’s death runs contrary to that theory (and in fact, that Brenda’s conduct enhances the credibility of her evidence as to when and how she discovered the existence of Version 2). Notably, the court queried, in part, why would Brenda, on the day following the Deceased’s death, attend at Mr. Colbert’s office with Version 1 and acknowledge to Ms. Fraser that she did not have a fully-executed version of the 2013 Will.

Ultimately, the court held that Brenda met her onus of establishing that the 2013 Will was: (a) signed by the Deceased in the presence of Ms. Desarmia and Ms. Gordon; and (b) executed in accordance with the requirements of the SLRA.  The court concluded that the 2013 Will is the last will and testament

This blog focuses upon only part of the court’s examination of the evidence of various witnesses and the totality of the circumstances considered. The case is worth a detailed review so that readers may appreciate the depth of the court’s analysis and its general approach to scrutinizing witness testimony and looking at the broader context in these types of cases.

About Joanna Lindenberg
Joanna is an experienced estates, trusts, and capacity litigator at de VRIES LITIGATION LLP. Joanna obtained her law degree from the Shulich School of Law at Dalhousie University after completing a Bachelor of Arts degree at McGill University. Following her call to the Ontario Bar in June 2011, Joanna obtained a Masters of Law at the University of California Los Angeles (UCLA), specializing in international and comparative law. Joanna's current practice focuses on, in part, will challenges, dependant’s support, capacity, and power of attorney disputes.

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