Witnessing Wills In Newfoundland And Labrador: What Does "In The Presence Of" Actually Mean?

• Published date: 21 July 2020
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Cox & Palmer
• Author: Mr Douglas Wright

Section 2 of the Wills Act (Newfoundland and Labrador the "Wills Act") sets out the legal requirements for the making of a valid will. To be valid, a will must first of all be in writing.

Formal Execution and Witnessing Requirements

A will that is entirely in the handwriting of the testator and signed by him or her is known as a "holograph will". It is legally valid under the Wills Act without the need for witnessing.

A will that is not entirely in the handwriting of the testator must comply with the formal execution and witnessing requirements of section 2 of the Wills Act. One of the fundamental roles of a lawyer or notary who prepares wills is to make sure that the final document is signed in conformity with the following rules:

• The testator must sign the will in the presence of two witnesses; and
• The two witnesses must sign the will as witnesses in the presence of the testator.¹

The same formal requirements apply to a codicil to a will or to an alteration on the face of a will that has previously been executed.²

Whether the strictures of section 2 require that both witnesses must actually see the testator inscribe his or her signature on a will or codicil before they sign the document as witnesses to the Testator's signature was in issue in the decision of the Newfoundland and Labrador Supreme Court in Re The Estate of Alec G. Henley.³

Substantial Compliance

All common law provinces of Canada other than Ontario and Newfoundland and Labrador have some form of "substantial compliance" provisions in their will or probate statutes. These are relieving provisions which allow a court to probate a will that may not have been executed in strict compliance with the statutory execution and witnessing requirements for formal validity. Because Newfoundland and Labrador does not have comparable provisions in its Wills Act, the interpretation of section 2 is critical in situations where the legal validity of a will is challenged for not being properly executed and witnessed.

The Facts in Henley

Henley concerned two codicils which were probated together with the Will of the Testator. Justice Carl Thompson of the Supreme Court of Newfoundland and Labrador affirmed the execution and witnessing of the codicils was valid under section 2 of the Wills Act notwithstanding the evidence of the witnesses to the execution of the codicils that they did not actually see the testator sign the codicils before they signed the documents as witnesses.

The testator was a businessman. The execution and witnessing of the two codicils took place on different days but the execution of both was handled by the testator in a similar fashion.

While in his executive office, which was part of a suite of offices for his business, the testator asked one of his employees to type the document for him. The employee who was the typist was also a signing witness to each of the codicils. After preparing and printing each of the codicils in accordance with the testator's instructions, on each occasion the employee took the document into his office and left it with him to review and returned to her desk.

In each case, the testator reviewed the codicil and signed his name to the document while he was alone in his executive office. On both occasions the testator then summoned the employee who typed the document back into his office to attend to the witnessing the already signed codicils. At the testator's request the first employee went out to bring another employee in from the outer office area to serve as the second witness.

Although each codicil was signed by two witnesses in the presence of the testator (meeting one of the requirements of section 2 of the Wills Act), the alleged deficiency in both cases was that none of the subscribing witnesses saw the testator sign the document. Notwithstanding that fact, the Court upheld the...