This Blog was written by: Kristie Smith, Estate and Trust Consultant, Scotia Wealth Management 

As we emerge from the Covid restriction era and a new normal comes into focus in our day-to-day lives, new symptoms and side effects of Covid are coming into view. In the estate planning realm, in particular, the effects of irregularly signed documents are upon us.

As the initial lockdowns of March 2020 took over, practitioners innovated on the spot to find solutions to enable wills to be drawn and executed without the traditional in-office, two-witness signing meeting. Some of the new practices were low-tech: meetings on front porches or back decks, but complete with the drafting practitioner and the requisite witnesses. Others embraced modern technology, albeit in a drawn-out and painful way: three separate virtual signing meetings as the documents were couriered from testator to witness 1 to witness 2. Still other solutions were “bespoke”: instructions to clients to draw their own documents, or a DIY formal-execution checklist.

We are beginning to see the results of these departures from the usual signing formalities in the jurisprudence.

Re: Estate of Darlene Edwards

One recent example is Re: Estate of Darlene Edwards, 2022 ONSC 3646. In this case, the deceased, Ms. Edwards, was diagnosed with terminal cancer in January 2020. Following her diagnosis, Ms. Edwards instructed a paralegal to draft a will for her. On March 26, 2020 – days into the lockdown – the paralegal provided Ms. Edwards with the draft document, by email. Ms. Edwards instructed her employee, Tami, to print out the document. Ms. Edwards’ daughter, Christina, then drove her to her office, for a meeting outside the office between Ms. Edwards, Tami and a third employee. The daughter watched as Tami give Ms. Edwards the printed documents, Ms. Edwards signed them, then Tami signed and finally the other employee signed.

Ms. Edwards died in November 2020. Thereafter, Christina was advised to obtain an affidavit of execution for the will, and approached Tami to swear the affidavit. Tami agreed to do so. Shortly thereafter, Christina wound up her late mother’s business, terminating Tami and paying severance pay. When Christina later followed up on the affidavit of execution, Tami responded – in writing – that she would not sign until a complaint she had with respect to her severance pay was resolved.

At the trial, Tami testified that Ms. Edwards, not Tami, brought the signature pages to the meeting, that she had not seen Ms. Edwards sign, and, seemingly, she did not know what she was signing. Worth noting, Tami’s new employer was the mother’s third child who had been disinherited under the will.

The Court summarily found that the document had been properly executed, as per Christina’s account of the meeting, and was a valid will for Ms. Edwards.

This blog has previously discussed another example, in which a hospitalized testator was denied a visit from her lawyer to sign a new will. On the lawyer’s advice, the testator drew a handwritten note to incorporate the typed draft will by reference. Unfortunately, the Court ruled that the two documents could not be accepted for probate. (See the blog post, and the Re: Lacroix Estate decision, 2021 ONSC 2919).

If you executed a will during the pandemic, particularly in novel or irregular circumstances, it may be worth reviewing the process of execution to verify that any required formalities were satisfied. As we see in the case law, deficiencies in formalities or even a grudge against the executor can lead to significant delays, expense for the administration or worse.