Due Execution of Wills: The Ontario Case of Bayford v Boese

November 14, 2019 | Jennifer A. N. Corak

A deceased individual’s will can be challenged for a number of reasons after death.  For example, a will may be challenged on the basis that it was not executed in accordance with the relevant provisions of the Succession Law Reform Act[1] (the “SLRA”).  In a recent decision of the Ontario Superior Court of Justice (Bayford v Boese, 2019 ONSC 5663), the court was asked to consider whether the execution of a will by Bruce Boese (the “Deceased”) met the requirements of subsection 4(1) of the SLRA.

Pursuant to subsection 4(1) of the SLRA, in order for a will to be valid: (1) the will must be signed at its end by the testator or by some other person in his or her presence and by his or her direction; (2) the testator must make or acknowledge the signature in the presence of two or more attesting witnesses present at the same time; and (3) two or more of the attesting witnesses must subscribe the will in the presence of the testator.

In the case of Bayford v Boese, Brenda Bayford (“Brenda”), a long-time friend of the Deceased, applied for a Certificate of Appointment of Estate Trustee with respect to a will said to be executed by the Deceased in August 2013 (the “2013 Will”). The Deceased’s brother, Brian Boese (“Brian”), filed a notice of objection and an order for directions was subsequently made.  

The 2013 Will was signed by the Deceased and two witnesses and had the word “DRAFT” stamped on every page.  It named Brenda as the sole trustee of the Deceased’s estate.  The 2013 Will provided that the Deceased’s 22-acre farm property in the Arnprior, Ontario area (the “Farm”) which he inherited from his parents was to be transferred to Brenda.  The residue of the Deceased’s estate was to be divided equally between Brian’s two children and the two children of the Deceased’s late sister, Rhonda McTeer (“Rhonda”).

In the early 1990s, the Deceased’s parents became less involved in the running of the Farm. The Deceased continued to work on the Farm, but managing paperwork and doing the books were not among his strengths.  Brenda began assisting the Deceased with the day-to-day operations of the Farm in the early 1990s, and the Deceased named Brenda as his attorney for property as of February 2009.  Brian last worked on the Farm when he was in university.  He had, as of the decision, been working as a dentist in Arnprior, Ontario for 38 years.  It was Brenda’s evidence that by early 2009, the Deceased was essentially estranged from Brian.

Following the death of the Deceased, Brenda found a copy of the 2013 Will (“Will Version 1”), which was stamped “DRAFT” and signed by the Deceased alone (i.e. not by witnesses).  She took Will Version 1 to the office of Timothy B. Colbert (who was the lawyer for the Deceased’s parents, the Deceased and Brian), expecting the fully executed copy would be found there.  It was not.  Weeks later, after meeting with one of the witnesses to the 2013 Will by chance, Brenda searched the Deceased’s house again and found the 2013 Will on top of a kitchen cupboard.

Brian’s position was that:

  1. Brenda either found a version of the 2013 Will which had been signed but not witnessed and then colluded, connived or conspired with the two witnesses, Sophie Gordon (“Sophie”) and Colleen Desarmia (“Colleen”), to procure the 2013 Will by asserting they witnessed the Deceased sign it, or the Deceased’s signature was forged on the 2013 Will to which Sophie and Colleen signed their names as witnesses; and
  2. A will executed by the Deceased in 1992 (the “1992 Will”) was the Deceased’s last valid will and, therefore, it governed the distribution of his estate.

The 1992 Will named the Deceased’s parents, who predeceased him, as the sole beneficiaries. Therefore, the Deceased’s estate would pass on intestacy if the 2013 Will was not valid.  The Deceased was not married and had no children.  If the estate (including the Farm) was to pass on intestacy, it would be divided so that half would pass to Brian, and the other half would be divided equally between Rhonda’s children.

Brenda had the burden of establishing, on a balance of probabilities, that the 2013 Will was duly executed with the requisite formalities[2].  After considering the evidence, the court found that the 2013 Will was executed in accordance with subsection 4(1) of the SLRA.  Since no challenge was being raised with respect to the Deceased’s testamentary intentions, and there were no allegations being made that the Deceased was unduly influenced, coerced into making a new will or lacked capacity to make a new will, the 2013 Will was found to be valid.  The decision details the evidence provided,[3] pointing out inconsistencies and explaining how such inconsistencies were resolved to come to the conclusion that the 2013 Will was valid.

As mentioned earlier, if Brenda had failed to satisfy the aforementioned burden resulting in a finding that the 2013 Will was invalid, it would have resulted in the Deceased’s estate passing on an intestacy.  Therefore, despite the fact that no question was raised as to whether the 2013 Will reflected the testamentary wishes of the Deceased, such wishes could have been defeated if it was found that the 2013 Will was not executed in accordance with subsection 4(1) of the SLRA.

The decision of Bayford v Boese reminds us of the “frailty of human memory,”[4] as well as the difficulties that can arise as a result of such frailty.  It also shows the issues that can arise after death as a result of family estrangement and/or as a result of the manner in which a will is stored.  It is also noteworthy that this type of challenge takes time.  The deceased died June 2015, and the judgment was rendered October 1, 2019.

A will provides the opportunity to step outside the laws of intestacy. It allows one to specify to whom their estate should pass and how. In general, a number of steps are involved in the planning and proper execution of a will.  The importance of the end of the process (i.e. the execution of the document) should not be overlooked.


[1] RSO 1990, c S26.

[2] Bayford v Boese, 2019 ONSC 5663 at paras 29 to 30.

[3] Such evidence included: (i) evidence from Brenda; (ii) evidence regarding the preparation of the 2013 Will from Tracey Fraser, who had worked in the law office of Timothy B. Colbert for 18 or 19 years; (iii) evidence regarding the execution of the 2013 Will from Sophie and Colleen (the witnesses to the 2013 Will); (iv) evidence from the proprietor of an equipment rental store in Arnprior with whom Brenda spoke about Will Version 1; and (v) evidence from a forensic document examiner.

[4] Bayford v Boese, 2019 ONSC 5663 at para 80.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

Miller Thomson LLP uses your contact information to send you information electronically on legal topics, seminars, and firm events that may be of interest to you. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at privacy@millerthomson.com.

© 2019 Miller Thomson LLP. This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested by contacting newsletters@millerthomson.com.