Many jurisdictions contain dispensation clauses relaxing the formal compliance requirements, if the court is satisfied that a document or any writing on a document embodies the testamentary intentions of a deceased.  For example, s. 23 of Manitoba's Wills Act  or California's Probate Section 6110-6113.  Not so with Ontario, except for holograph wills and for members of the Canadian Forces on active service.  While there is wiggle room in terms of the interpretation of the execution requirements, for instance what constitutes "in writing" or "signed by the testator", if the formal requirements are not met and no specific exemption applies, there is no saving provision based on testator's intention, and therefore no testamentary instrument.

This can have harsh consequences, by invalidating otherwise perfectly good wills on narrow technical grounds.  On the other hand, the SLRA provides time-tested, black-letter legal clarity.  Time tested, because the formal requirements descend from the Wills Act, 1837.

Have a great weekend,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

Listen to Will Challenge Litigation - Part 7

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They discuss fraud as one of the most serious ways in which a will can be challenged. Evidential requirements are important when allegations of fraud or forgery are made. Handwriting analysis and other scientific means of determining the legitimacy of evidence can be employed to determine whether or not fraud has occurred. Ian and Suzana also talk about lack of proper execution being grounds to challenge a will.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

Will Challenge Litigation Part 7 - Hull on Estate and Succession Planning - Podcast #132

Posted on September 30, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #132 of our podcast on Tuesday, September 30^th, 2008.

Ian Hull:  Hi, Suzana.

Suzana Popovic-Montag: Hi there, Ian. How are you?

Ian Hull: Just terrific, thank you. I’m looking forward to today’s podcast and videocast because it touches on one of the areas of the Will challenge process that I find somewhat intriguing and probably the most intriguing. We finished our last podcast talking about the issues, the core central issues, well we really spent the most of our last podcast on undue influence. Today, let’s wrap up these issues as best we can in terms of the legal issues, and let’s talk for a minute, as we said in our last podcast, it’s not worthy of a lot of attention because there’s so few cases that deal with the question of fraud. But the one area where it does get dealt with is fascinating.

Suzana Popovic-Montag: And that’s when the allegation is that the Will that’s actually being put forward was not, in fact, signed by the deceased, so that it was essentially forged. And that allegation of fraud is one of the most serious allegations you can make at law. And so Ian has said in our earlier podcast we, as counsel, are very, very careful in advising clients whether or not to pursue this allegation because once you make it, there are serious consequences associated with that allegation.

Ian Hull: And those are, of course, that if you’re wrong, you could be exposed to every cent of the cost in the process. And judges come down very hard on you if you allege fraud and don’t prove it. So that’s hovering around, and that’s a big part of why fraud is not used because the judges in Will challenges aren’t as rough on you if you’re alleging undue influence and capacity in the costs context. But the forged Will is one that does come up from time to time, and there is a fairly easy way to deal with it and one that, as I say, is fascinating, because if you read these reports, it’s like magic. And that is, is that you can get handwriting analysis done. So you get the Will, the client comes in and says, look, my dad was not well, but more importantly, there’s no way this is his signature.  So one of the things we would do is, is that maybe even before we allege the fraud, we would move fairly quickly if we could get a copy of the original, to get a report from a forensic, and one of the great ones, Diane Kruger, who is one of Canada’s leading experts, and Brian Lindbloom, is another Canadian expert in this area.  We get an expert opinion as to whether or not that’s the valid signature of the deceased. And how they do it is kind of a neat process, and the first steps that we take to do that.

Suzana Popovic-Montag: And it’s a really scientific process that’s based on comparison with other original signatures.  And so when we’re talking, and we’ve talked in previous podcasts about this intense investigation stage, one of the things that we may be looking for if the allegation is, in fact, a fraud or forgery, is for documents that bear the testator’s original handwriting, their signature and other ways that we can demonstrate that this was the way that someone would typically sign something or that someone would write something.  And those kinds of evidential requirements are really important when you make these kinds of allegations.

Ian Hull: And so when you come into this, and where you’re looking at it is, this is the homework that we’re going to impose on the client. They want to make that allegation, we’ll typically say, okay, go back and seek out signature specimens.  And these experts will typically say we want specimens that are time specific. They will say as close to the time that the signature of the Will was made, because as we know, elderly people, and all of us, our signatures change over the years, so the more current, the more effective the evidence is. And this really, this evidence can really explode a law suit and, obviously, the question of fraud is a tremendous emotional question as well.  So whatever we can do at the outset to deal with it quickly, get lots of good specimens and get the opinion out of our expert, and get a good expert, is another sophisticated level that we can take this. 

Now Suzana, let’s talk for a minute about that possibility that we can’t get at: (a) original specimen signatures; or (b) we can’t get access to the original Will because the other side’s being difficult.  What do we do then?

Suzana Popovic-Montag: Well that’s another situation with another level of possible litigation where you’re going to have to possibly consider bringing a Motion before a Court, in order to have the authority to compel the individual with the original Last Will and Testament to bring it into Court, so that you can have the opportunity to provide that and any other specimen signatures to the individual who’s going to prepare your report for you. And that, you know, when we talk about these extras, or the bells and whistles to litigation, sometimes these steps will arise. We could never predict that we would have such a difficult time getting it, but there are mechanisms that we can, fortunately, turn to in order to be able to get this for our clients.

Ian Hull: And this is sort of a procedural side show. And there’s orders for assistance we can get for a lot of different relief that we’d want, and we’re going to talk about those orders for assistance at a different podcast. But, you’re right, Suzana, if there’s a mechanism available, it’s an additional cost, delay, it’s another part of the battle, but it can be done. So, we’ve wrapped up the question of fraud which is the classic scenario. There’s obviously other areas where fraud is pursued, but that’s the classic one.

Let’s just take a minute now to look at the question of lack of proper execution. Not because, we haven’t ignored it because it isn’t important. In fact, this can be the fatal blow. And why do I say that? Why do I say this could be the fatal blow, Suzana?

Suzana Popovic-Montag: Well, again, Ian, just because it’s one of those grounds. And if you can demonstrate that a Will is not a valid testamentary document, then the game’s over.  The Will challenge is over in the sense that that document is set aside so you’re looking to either a prior Will or possibly an intestacy.

Ian Hull: And we love the fact that these podcasts are listened to all over the world and all across Canada, and so we try to, whenever we can, be fairly global about what some of our comments are and where the law trends are going. And one of the trends with lack of due execution in Ontario is there was some case law bouncing around over the last 10 years, but it’s come down pretty clear that the terms of the Succession Law Reform Act must be followed. You must have two witnesses in the room at the same time when the individual signs it, no excuses, no what they call substantial compliance. There’s no way of getting out of it. The alternative, of course, is in some of the other jurisdictions and that is, the question of substantial compliance.

Suzana Popovic-Montag: And that really is the key, because what had happened in Ontario is that the judges were recognizing the fact that in other provinces in Canada, sometimes Wills were being allowed to be probated or were being upheld by judges when there was perhaps only one witness or when there was some other form of less than perfect compliance with the legislation. So, substantial in the sense that close enough was good enough in those jurisdictions. But our Courts here in Ontario have come down quite strongly on the fact that no, we have legislation, it provides for specific requirements, and those requirements have to be met if a Will is going to be valid here in Ontario.

Ian Hull: Manitoba’s an example of a substantial compliant province, and there are others as well, so it’s worth exploring because the different jurisdictions approach it differently. But, it’s a mandatory compliance rule in Ontario.  It’s a full stop if the Will hasn’t been executed properly in most situations. There are some variations on every theme, any time you put an absolute, you’ll have a judge to say, wait, there’s no absolute. But it’s an important issue to always check off on the checklist, that we always do with our clients. 

So, those are the sort of five important areas of attack, and there are more, and there are other strategic steps that we want to consider, now that we’re into the Will challenge process. We are into the litigation. We’ve talked enough about process a few podcasts ago.  We’re into it, and these are the kinds of strategic and legal considerations we’re going to start to make. And we’ll talk about some of the other ones in our next podcast. So, thanks very much, Suzana.

Suzana Popovic-Montag: Thanks to you, too, Ian. And just a reminder if anyone would like to send us some feedback, feel free to send us an e-mail at hullandhull@gmail.com.

Ian Hull: And our call-in number - 206-457-1985. Thanks very much for listening.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

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Or, listen to the audio version of Will Challenge Litigation - Part 5

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They continue to discuss the process of will challenges in closer detail. What makes a good case? They talk about the five different grounds upon which a will can be challenged:

1. Lack of testamentary capacity
2. Existence of suspicious circumstances
3. Will not having been properly executed
4. Existence of undue influence
5. Possibility of fraud

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss what to anticipate as an executor and how to ensure that you are well prepared for your duties.

Execution of a will is often seen as a simple task, but the process can sometimes pose serious challenges to the practitioner retained to prepare an effective will. Challenges to the validity of a will on the basis of due execution are common, as are solicitor negligence actions where the will fails as a result of improper execution.

The requirements for due execution of a will are set out in Part I of the Succession Law Reform Act, R.S.O. 1990, c. S.26 as amended ("SLRA"). The SLRA provides the framework for the valid execution of a will. These sections merit a review. Section 3 provides that a will is valid only when it is in writing. "Writing" is defined in s. 29 of the Interpretation Act, R.S.O. 1990, c. I.11 as including words printed, painted, engraved, lithographed, photographed, or represented or reproduced by any other mode in a visible form.

There is no provision for videotaped wills in Ontario. A will may be written in a foreign language. However, when applying for a Certificate of Appointment, the Court must be furnished with an authenticated translation. Alternatively, a non-English speaking testator can have the English will read to him by a translator. The translator should swear an affidavit averring that the will was read over to the testator and that he or she appeared to understand it. Section 4(1) of the SLRA sets out the requirements for due execution.

Tomorrow, I will look closely at the requirements of this section.

Have a great day. Paul Trudelle