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WILLS - Signature of witnesses - Formal validity, requirements - Testamentary capacity

Tuesday, July 13, 2021 @ 5:29 AM  


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Appeal by Worthing, the testator’s spouse, from an order declaring the will of the testator was proven in solemn form. In 2013, the 63-year-old testator died of cancer. The testator’s will, executed five months prior to her death, was witnessed by two employees of the funeral home where the testator made her funeral arrangements. Each witness printed their name in the appropriate location and initialled each page of the will but there was no signature line and neither signed the will. The trial judge concluded the witnesses’ printed names and initials on each page satisfied the statutory subscription requirement. He found nothing on the record to indicate suspicious circumstances regarding the testator’s capacity. The trial judge rectified facial errors contained in the will. The testator’s executor was the solicitor who drafted the will.

HELD: Appeal dismissed. The trial judge did not err in finding the printed names and initials of the witnesses were marks that could suffice as a subscription within the meaning of s. 4 of the Wills Act. He did not err in concluding the witnesses knew they were there to witness the testator’s signature and that they intended to subscribe the will when they handwrote their names on the will. As found by the trial judge, the presumption of capacity was available. The trial judge did not err in finding the appellant had not shown suspicious circumstances capable of rebutting the presumption. There was no basis to interfere with the trial judge’s costs award that required the appellant to pay the costs of the probate proceeding and declined to make the executor personally responsible for the costs of the rectification. While close to the line, the appellant’s conduct did not merit special costs as his appeal was not entirely without merit. The appellant was to bear his own costs and pay the respondents’ ordinary costs into the estate.

Conner Estate v. Worthing, [2021] B.C.J. No. 1261, British Columbia Court of Appeal, S. Stromberg-Stein, L.A. Fenlon and J. DeWitt-Van Oosten JJ.A., May 26, 2021. Digest No. TLD-July122021004