What happens if someone alleges that a will was not properly signed, and the witnesses whose signatures appear on the will have died or cannot be found?
Columbia, the Wills Act sets out formal requirements
for a valid will. In particular section 4 says:
Subject to section 5, a will is not valid unless
(a) at its end it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction,
(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.
(Section 5 sets out some limited exceptions for members of the armed forces under active forces and mariners at sea.)
This issue was considered recently by Mr. Justice Barrow in Hsia v. Yen-Zimmerman, 2012 BCSC 1620.
Chester Hugh Yen signed a will on August 13, 1973, a day before the anniversary of the murder of one of his daughters, Lily. In his will, he made provision for his surviving children, but none for Lily’s children. After his death on February 11, 2010, Lily’s two surviving children, challenged the validity of the will.
The executor, Mr. Yen’s daughter Barbara Hsia, applied to court to prove that the will is valid. She had the burden of proving that the will was signed in accordance with section 4 of the Wills Act, that her father knew and approved of the contents of the will, and that he had the capacity to make a will.
The will had Mr. Yen’s signature on it, and appeared to have the signatures of two other people, Frank McGinley and Ethel Strachan. These two signatures appeared under an “attestation clause,” which said:
SIGNED, PUBLISHED AND DECLARED by the above-named Testator, CHESTER HUGH YEN, as and for his Last Will and Testament, in the presence of us, both present at the same time, who at his request, in his presence, and in the presence of each other have hereunto subscribed our names as witnesses:
Mr. McGinley was a lawyer in
Vancouver, who is now deceased. His signature
was proven, but the parties were not able to find Ethel Strachan or prove her
The two grandchildren challenging the will argued that without evidence from either of the witnesses to the will that they were in fact both present when Mr. Yen signed the will, and that they also signed in the presence of each other and Mr. Yen, the executor had not proven that the will was valid.
Mr. Justice Barrow held that the will was valid. He relied on a presumption that if the will appears on its fact to be signed by the will-maker and the witnesses in accordance with the formal requirements, there is a presumption that the will was in fact properly signed and witnessed. This is a presumption only, and may be rebutted by evidence of a defect in the manner that the will is signed. But unless there are circumstances tending to show that a will was not properly signed, the courts try to give effect to the intentions of the will-maker, as expressed in the will. Mr. Justice Barrow wrote at paragraph 23:
 The common-law principles applicable in these circumstances were summarized and explained in, among other cases, Re Laxer,  1 O.R. 343;  O.J. No. 659 (C.A.). In that case, Schroeder J.A. began his analysis by noting at para. 25 (cited to  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), L.R. 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.
Mr. Justice Barrow applied the presumption that the will was validly signed, and held that it was more probably than not that it was properly signed. There were no circumstances calling into question the proper signing and witnessing of the will. Furthermore, there was other evidence that Mr. Yen intended to make his document his will. He had written to one of his daughters a letter dated the same day as his will saying that he had finally written his will at a lawyer’s office.
Because the will was signed in accordance with the formal requirements of the Wills Act, there is a further presumption that Mr. Yen knew and approved of the contents of the will. Mr. Justice Barrow did not find any circumstances rebutting that presumption.
Finally, Mr. Justice Barrow also rejected the argument that Mr. Yen did not have capacity. The two grandchildren challenging the will argued that Mr. Yen “suffered from an insane delusion that in order to erase the pain and anguish from his mind of the murder of his daughter, he had to abandon his relationship with the children of his murdered daughter, which abandonment included their exclusion from his Will.” Mr. Justice Barrow was not persuaded that Mr. Yen was suffering from delusions, and found on the evidence that Mr. Yen did have capacity to make a will.