A recent article in The Washington Times, found here, discusses the use of an Autopen by President Obama to sign the most recent fiscal cliff bill while on vacation in Hawaii.
According to the CBC, an Autopen is a desk-sized contraption that is capable of copying a person’s signature. Used by MP’s, a piece of paper must be placed under the pen, a gas pedal must be stepped on, and the Autopen replicates the signature. This is all done in the absence of the actual person signing the document.
According to s. 4(1) of the Succession Law Reform Act (“SLRA”), a will may not be valid unless: (a) at its end it 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.
Thus, the question worth considering is whether an Autopen, or any similarly advanced piece of technology, could ever be used to meet the requirements under the SLRA? One obvious deficiency is that the testator is clearly not present when signing the document, hence the whole purpose of the Autopen. But what if camera’s were installed in the same room as the Autopen such that the testator was virtually present? A bit far-fetched, I admit. A second deficiency is that the testator does not actually sign the will, as technically that is done by the Autopen. However, consider the following.
In Clarke Estate (Re) at issue was whether a paraplegic, using a stamp to sign his will, constituted the act of signing the will under the SLRA. Justice D.M. Brown held that the paraplegic testator complied with the requirements under the SLRA. Relying on Re Bradshaw Estate,  N.B.J. No. 709 (P.C.), a decision based on the New Brunswick Wills Act, the applicable test applied was as follows: (i) were the markings on the will made by the testator, and (ii) were they intended as his signature and to represent the best that the testator could do by way of writing his name under his physical circumstances?
The circumstances surrounding the inability of the testator in Clarke Estate (Re) are significantly different than those of President Obama. Clearly the law has to be able to accommodate the former situation. However, it is interesting to consider in what further circumstances could the New Brunswick test be applied in Ontario. Specifically, could the Autopen ever be used to represent the best that the testator could do by way of writing his name under his physical circumstances?