In a will validity application under the Succession Law Reform Act, the respondents moved for a non-suit alleging that the propounders had failed to prove formal execution because one attesting witness did not actually see the testator sign the will.
The court considered whether the statutory requirement that the testator sign or acknowledge the signature in the presence of two witnesses was satisfied.
Applying the civil standard of proof and principles governing suspicious circumstances, the court held that the evidence supported a finding that the signature was made in the presence of both witnesses or, alternatively, acknowledged in the presence of the second witness when he was asked to sign as a witness.
The court rejected the argument that strict non-compliance invalidated the will and concluded that the statutory requirements had been met on the evidence.
