While lawyer committed error or oversight, willmaker made no mistakes, court notes
At a formal will signing ceremony, the best practice is to sign documents one at a time with due care and attention, check that everything is in order, then sign affidavits of execution right away, a recent ruling said.
On Oct. 7, 2011, a mother and a father visited a lawyer so that each of them could sign a new will and two powers of attorney. The lawyer and his law clerk witnessed the signing ceremony, which involved passing six documents back and forth. Each document required four signatures.
Through error or oversight, the lawyer failed to sign as a witness on the mother’s will. The lawyer thought that all the documents were properly signed and witnessed, stored the wills in a vault, and billed the parents for the legal services. The lawyer did not prepare affidavits of execution.
In September 2022, the mother died, leaving her son and daughter as her estate’s sole beneficiaries. Her will was invalid under s. 4 (2)(b) of Ontario’s Succession Law Reform Act, 1990, which required the attestation of two witnesses,
The son, who was her estate’s trustee, filed an application to validate the will under s. 21.1 of the legislation. This provision – which applied if the willmaker died on or after Jan. 1, 2022 – gave the court the power to treat a document not properly executed as a will but expressing the willmaker’s testamentary intention as a valid will.
The daughter, who was the respondent in this case, did not oppose her brother’s application.
In Vojska v Ostrowski, 2023 ONSC 3894, the Ontario Superior Court of Justice declared the validity and full effectivity of the will dated Oct. 7, 2011 as the will of the deceased as if it had been properly executed or made.
The court called this a textbook example of a case where the new power provided by s. 21.1 was meant to apply. Here, the will was not properly executed because the lawyer did not pay due care and attention to the formalities, the court said.
“The fact that the lawyer did not bother with affidavits of execution shows the rather lax approach to the formalities that he took,” wrote Judge Fred Myers for the court.
The court accepted that accomplishing such affidavits would require a few more minutes. However, “part of the goal of paying a professional is to produce valid outcomes and to avoid the common errors that lack of ordinary care produces,” Myers said.
The court described the scene that must have occurred, with six documents being passed around and with four people signing. After all that, nobody checked to ensure that the documents were properly executed, the court lamented.
The will, which was otherwise authentic, set out the willmaker’s testamentary intentions as s. 21.1 required, the court said. The court noted that the document was drafted by the lawyer as a will, was kept in the lawyer’s vault, replaced an older will that also gifted property to the two children, and was never revoked or changed.
The deceased went to the lawyer’s office for a formal signing ceremony, had two witnesses present, made no mistakes with the formalities, and believed that the document she signed was her new will, the court added.
The court noted that the new will increased the size of the gift for the son. Thus, the court found it significant that the daughter made no opposition despite the will’s financial prejudice to herself.
