Ellis v Turner 20 ETR (2d) 306 BCCA involved a decision of the British Columbia Court of Appeal were by the court upheld the trial judge’s decision that the will of the deceased was invalid by reason of the fact that he printed his name at the top of the will document but not at the bottom of the document.
The will was declared not to be testamentary and the testatrix was declared to have died intestate
Section 4 of the wills act says that subject to section 5, a will is not valid unless at its end is signed by the testator or signed in his name by some other person in his presence and by his direction.
The same provision also provides that the testator must make or acknowledged his signature in the presence of two or more attesting witnesses present at the same time, and that two or more of the attesting witnesses subscribe the will in the presence of the testator.
” The Wills Act creates a scheme designed to insure that a document purporting to be a testamentary disposition is in fact the will of the testator. A strong indicia of authenticity is proof that the will was signed at its end in the presence of witnesses. This Court must interpret, apply and respect the law as passed by the legislature. To declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.”