The Presumption of Due Execution In Wills

Due Execution In Wills

Yen Estate v Yen- Zimmerman   aka Hsia v Yen- Zimmerman, 2012 BCSC 1620 contains a long analysis of the law relating to the requirements for execution of the will, and focusing on the presumption of due  execution of the will when him him him him him the attesting witnesses who appear to have properly executed the will are no longer able to testify at court in support of the proof in solemn form application to prove the validity of the will.

The deceased daughter was murdered in 1972 leaving behind her two children.

The deceased made a will the following year and divided his estate equally between three surviving daughters and made no provision for the two grandchildren.

The executrix brought a court action to prove the deceased’s 1973 will in solemn form and to have it admitted into probate, and the court allowed same.

The court found that there were three signatures on the last page of the will purporting to be those of the deceased and two witnesses. Accordingly the will was signed in the manner required by section 4 of the wills act.

The problem arose that the signatures of one witness and the deceased were proven, while the second signature had not been proven and the signer’s identity was unknown.

The court applied the common law presumptions of due execution and found that in signing the impugned document, the deceased intended to make his last will as he signed the documents filed last will and testament in the presence of a lawyer.

It was open to the court to draw the inference that the second signor signed as a witness and did so in the presence of a lawyer and the deceased.

The court quoted the following extensive review of the law in this area:

Section 4 of the Wills Act sets out the requirements for execution of a will. It provides in part that:

4  Subject to section 5, a will is not valid unless

  1. at its end it is signed by the testator…,
  2. the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and
  3. 2 or more of the attesting witnesses subscribe the will in the presence of the testator.


23.  The common-law principles applicable in these circumstances were summarized and explained in, among other cases, Re Laxer, [1963] 1 O.R. 343; [1963] O.J. No. 659 (CA). In that case, Schroeder J.A. began his analysis by noting at para. 25 (cited to [1963] O.J. N. 659) that:

The Courts have shown a decided tendency to lean towards an effectuation of the expressed wishes of persons if satisfied that they really are their testamentary wishes, and when a testamentary document appears to be regular on its face and apparently duly executed, the evidence as to some defect in execution must be clear, positive and reliable [citations omitted].

At paragraph 27, he wrote that “[i]t is well settled that if a will on the face of it appears to be duly executed the presumption is that all acts have been done rightly”. This presumption is a particular instance of the more general presumption or inference that Lindley L.J. explained in Harris v. Knight (1890), LR. 15 P.D.170 (C.A.), where at pp. 179-180 he wrote:

…The maxim, “Omnia praesumuntur rite esse acta” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect…

It is a presumption or inference that is “stronger or weaker according to any material facts connected with the case” (Laxer at para. 32). The underlying purpose of the presumption, in the context of proving due execution of a testamentary instrument, was explained by Schroeder J.A. at para. 33:

The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law.


]      Evidence of some defect in execution must be cleat, positive and reliable, where a testamentary document appears to have been properly executed. The maxim Omnia praesumuntur rite esse acta applies and all things are presumed to have been rightly and duly performed: Re Laxer…

He also cited with approval the decision of Dalziel v. Bradford, [1985] B.C.J. No. 2754 (S.C.), where McEachern C.J.S.C. (as he then was) wrote at para. 41:

[41]      Re Laxer, supra, particularly lays down the principle at p. 206 that apparent due execution is sufficient to cause the Court to presume that everything was done right. That authority also explains that the presumption of due execution is a salutary principle since a contrary rule would make the right of beneficiaries depend as much upon the honesty and reliability of witnesses as upon the language of the testamentary instrument. In addition, for some obscure reason, an attestation clause is said to be a significant factor supporting this presumption, and there is such a clause in this codicil.

Thus, in the absence of any credible evidence by the witnesses to the will, indeed \n the face of their evidence to the contrary, the court in Beniston Estate held the will was properly executed relying on the presumptions in Laxer.

[31]     In Beaudoin Estate v. Taylor, [1999] B.C.J. No. 770 (S.C.), the witnesses to a will testified that the deceased did not sign the will in their presence. Further, they could not recall if, when they signed the will, the deceased’s signature was on the document. The issue was whether the deceased had acknowledged his signature in the presence of the witnesses. At para. 11 Bumyeat J. wrote:

[11]      …Where there is a regular attestation clause, it can be presumed that the will was duly witnessed by a person who knew the requirements of the Wills Act. The court will not assume that a person has signed his or her name to the attestation knowing it to be untrue…

He then applied that presumption in the context of the other evidence and found that the will had been properly executed.

[32]     Six years later in Jung, Re Estate of Horace Lee, 2005 BCSC 1537, Burnyeat J. was faced with a somewhat different issue. He was asked to find that a will had been proven in solemn form. The witnesses to the will gave evidence that it was signed in accordance with the requirements of the Wills Act. The difficulty was that the deceased had signed in the midst of the attestation clause as opposed to where he should have signed. Burnyeat J. referred to Laxer and specifically adopted the following statement from para. 32 of that judgment:

[32]      Where the circumstances point to the fact that a testator intended a document to be his will and thought that he was complying with the statutory requirements as to execution the Court will presume that everything was right, so that where there is any doubt about the recollection of the attesting witnesses, or where for any reason it cannot be relied upon, and where upon the evidence viewed in its entirety it can fairly be  

concluded that the will ought to be held good, the Court may say that it is satisfied that the will was duly and properly executed.

Jung was appealed and Burnyeat J.’s decision was overturned but not on this point. When the matter came back for a second trial, Silverman J. relied on Laxer (2007 BCSC 1740). At paragraph 46, he cited it as support for the following proposition:

When probating wills, the court proceeds on the presumption that the will was properly executed, if it appears to be properly executed when it is presented to the court. This is a rebuttable presumption that may be defeated if, after considering all the evidence and relevant circumstances, it is probable that all the formalities of execution were not met. The presumption of valid execution can be stronger or weaker depending on any material facts connected with the case…

[33]    The defendants point out that Vout v. Hay is not mentioned in any of these cases, and they argue that, as a result, they are of no particular assistance. Rather than conclude that Vout v. Hay was simply overlooked by all involved in these cases, I think it more likely that it is not referred to because it is not helpful in deciding questions of due execution.

[34]    Finally, the underlying rationale for the presumptions remains as compelling now as it was 50 years ago when Laxer was decided or 100 years ago when Harris v. Knight was handed down.

[35]    In conclusion, I am satisfied that the presumptions or inferences summarized and explained in Laxer, and the cases cited therein, remain available in resolving issues of due attestation and proving knowledge of the content of testamentary instruments.

[36]    I turn now to the facts and the application of the law to those facts. As Lindley L.J. pointed out in Harris, the maxim omnia praesumuntur rite esse acta “expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability”. I am satisfied that the deceased, in signing the impugned document, intended to do a formal act, namely, make his last will. The evidence that supports that inference is that he signed a document styled “Last Will and Testament” and that he did so in the presence of a lawyer who, in all likelihood, drew the document.

[37]    There is a second presumption which may be a particular or specific instance of the more general maxim embodied in the Latin expression set out above. It arises from the presence of the attestation clause. It was explained in Wright v. Sanderson (1884), 9 P.D. 149:

…If the attesting witnesses were both dead, then, on proof of their handwriting, the codicil would, if there was no other evidence, be admitted to probate, not only the presumption omnia rite esse acta, but in consequence of the presumption that what was stated, in the

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