There are formalities involved in making a will. One such formality is with respect to the execution of a will. Section 4 of the Wills Act sets out the execution requirements. It provides in part that:

A will is not valid unless

(a) at its end it is signed by the testator……,

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

If a will was not executed in accordance with the above requirements, the will would be found to be invalid.  The legal burden of proof with respect to due execution of a will rests with the person upholding the will. In most cases, that person is the executor. The executor, especially the executor of a will made decades ago, may find himself in a situation such that he cannot positively prove that the will was signed pursuant to the statutory requirements because the witnesses attesting to the will may have died or disappeared. What can he do in the circumstances?

The Supreme Court of British Columbia recently revisited the issue in Hsia v. Yen-Zimmerman, 2012 BCSC 1620.  In that case, one of the testator’s daughters was murdered in 1972. The testator made a will in 1973 providing for his surviving children. The 1973 will did not provide anything for the children of his deceased daughter. The will appeared to have been witnessed by two people: Frank McGinley and Ethel Strachan. The former was the testator’s lawyer and had predeceased the testator. The identity and whereabouts of the latter were unknown when the will was probated.

The testator died in 2010. His grandchildren who were left out of the will challenged the validity of the will. They argued, in part, that without evidence from either of the witnesses to the will that the will was signed in accordance with Section 4 of the Wills Act, the executor had not proved that the will was validly executed.

The Supreme Court of British Columbia held that the will was valid, and confirmed the long standing common law principle that if a will on its face appeared to be duly signed, it would be presumed to have been duly signed unless there is clear, positive and reliable evidence that there was some defect in the signing of the will. The Court held that the 1973 will on its face appeared to be duly executed, and the grandchildren failed to produce any evidence which cast due execution into doubt.

The presumption of proper signing of a will is a “rebuttable” presumption. This means if the Court finds that the challenger of a will has produced evidence that casts due execution into doubt, then the legal burden of proof shifts to the person who is upholding the will.