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In Ontario, for a Will to be considered valid, it must be created by a testator who is of sound mind and over the age of 18. The testator must also sign the Will in the presence of two witnesses, who then sign confirming they witnessed the testator’s signature. But what happens when a witness later tries to deny having witnessed the Will’s execution?

In the case of Re Estate of Darlene Edwards, estate litigation arose when a witness recanted earlier statements that she had witnessed the testator’s signature. The witness was an unhappy ex-employee of the testator who was displeased with pay received in lieu of notice after the testator’s death.

Testator’s clerk witnessed Will

The testator was an insurance agent and was working in that profession when she found out she had terminal cancer. Following her diagnosis, she reached out to her daughter to help her arrange what she anticipated to be her last Will and testament on March 26, 2020.

The person hired to draft the Will emailed it to the testator, who then emailed it to her clerk to have it printed so it could be signed and witnessed. The testator had two people, including her clerk, witness its execution. As the Will was executed in the early days of the COVID-19 pandemic, the parties decided to meet on the back deck of the insurance agency where the testator and her clerk worked.

Affidavit of execution required from clerk to validate Will

The testator passed away on November 12, 2020, about eight months after the Will was executed. The Will named the testator’s daughter and son as joint executors. After the son renounced his executorship, the daughter was left to handle the estate alone. She reached out to her lawyer, who advised her that each of the witnesses to the Will would have to provide an affidavit of execution. The daughter spoke to the testator’s clerk and stated that the clerk agreed to provide an affidavit.

Insurance agency shuttered after testator’s death, clerk received pay in lieu of notice

The testator’s insurance agency shut its doors the month after she died. Her daughter managed this process and gave the testator’s clerk 14 weeks of pay in lieu of notice. 

The notice provided to the clerk was more than she was entitled to under the Employment Standards Act. While the Ontario Superior Court noted that while the clerk may have been granted more notice under common law, one of the factors that can reduce this entitlement is whether or not the person has secured new employment. In this case, the clerk found work with a new insurance agent and brought along most of the testator’s clients.

Clerk recanted having seen the execution of the Will

Following her conversation with the testator’s daughter, the clerk advised her that she was unwilling to sign an affidavit of execution until she resolved the question of her right to severance pay. By this time, the clerk had begun to think she was entitled to more than the pay in lieu of notice provided by the testator’s daughter.

The clerk testified before the Court about the execution of the testator’s Will. She told the court that on the date the Will was executed, the testator arrived at the office with three documents, which she signed and handed to the clerk and the other witness. However, the clerk testified that she did not actually see the testator sign the Will and that she couldn’t say whether the testator signed the documents at that time or whether they were signed beforehand. She said she signed as a witness because the testator was her boss and asked her to do so.

In response, the testator’s daughter told the Court that the testator and witnesses were all standing close together on the insurance agency’s deck at the time of the signing. She argued that there was no ambiguity over whether her mother signed the Will in front of the witnesses.

Clerk’s evidence lacked credibility, was based on unhappiness with termination pay

The Court found that the testimony of the testator’s daughter was “plausible and coherent”. By comparison, the Court found the clerk had changed her version of events as she was unhappy with the amount of pay received in lieu of notice when the testator’s daughter closed her mother’s business. In fact, the clerk had admitted as much in a letter to the daughter in which she advised she would not sign the affidavit of execution.

Additionally, the Court found that the clerk’s signature on the Will contained the usual statement that it had been signed in the presence of the testator and the other witness. The Court found that the clerk would not have signed the document blindly and, in signing, had attested to having done so in the presence of the testator.

Contact Derfel Estate Law in Toronto for Effective Representation in Estate Disputes

At Derfel Estate Law, our talented estate litigation lawyers work tirelessly to achieve the best possible resolution for clients in a variety of disputes, including Will challenges, passing of accounts, and trustee and executor disputes. We help beneficiaries, executors, trustees, guardians, and other parties navigate the technical and complex landscape of these highly-emotional cases. We also provide comprehensive assistance with probate and estate administration. To schedule a confidential consultation, contact us at 416-847-3580 or reach out online.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estate Law

Contact Derfel Estate Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.


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