Zerbinati v Zerbinati 2013 SCJ mini 70

COURT FILE AND PARTIES

COURT FILE NO.: ES-11-089

DATE: 14 November 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dante Aldo Zerbinati, Mario Zerbinati, and Peter Zerbinati

AND:

Valentino Marco Zerbinati and Joseph Valentino Zerbinati, by way of his litigation guardian the Office of the Children’s Lawyer, Respondent

BEFORE: Justice John deP. Wright At Kenora, Ontario

COUNSEL:
Karen Seeley, Counsel for the Applicant

Shane Pearce, Counsel for the Children’s Lawyer for Joseph Doherty

Valentine Marco Zerbinati Self Represented

HEARD: 13- 14 November 2013

Reasons on MOTION FOR NON-SUIT

Nature of the Motion

1This is an application to decide the validity of a will signed by Valentino Mario Zerbinati on the 02 August 2008. The propounders of the will must establish formal validity of the will. The respondents now move on a motion for non-suit to dismiss the application on the ground that the formal validity of the will has not been established.

2The Ontario Succession Law Reform Act provides as follows:

S 3: a will is valid only when it is in writing.

S4: (1) subject to sections 5 and 6 a will is not valid unless,

a) At its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

b) The testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

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

3The will is facially sufficient. No one questions that it was signed by the testator. Fraud and mental incompetency are not raised in challenge of the due execution. There were two attesting witnesses: John Robert Remus and Ken Biniaris. Both subscribed the will in the presence of the testator.

4Those propounding the will are Valentino Jr. whom I shall refer to as “Tino” Zerbinati, a son of the testator and Tino’s infant son, Joseph Doherty who is represented by the Children's Lawyer. They stand to share the residue of the estate equally. The will is contested by Tino’s three brothers.

Due execution of the will is challenged on the grounds that the testator did not make or acknowledge his signature in the presence of the two attesting witnesses. The evidence is that the testator signed the will in the presence of Mr. Remus but Mr. Biniaris says he did not see the testator actually sign the document.

5Remus had prepared wills for both Valentino Zerbinati and his wife Maria. At this stage it must be pointed out that Mr. Remus is not a lawyer. He prepared these documents on a computer in the home of the Zerbinatis them took the documents into the kitchen where Mr. and Mrs. Zerbinati were sitting at the kitchen table with Barbara Lyn, Mr. Remus's wife. After reading the documents to the testator's Mr Remus presented the documents to them for signature. After Maria Zerbinati signed her will Mr. Remus and Ms. Lyn signed as attesting witnesses to her will.

6It had been the intention of Remus and Lyn to sign as attesting witnesses to both wills but just as they were turning to Mr.Zerbinati’s will a family friend, Ken Biniaris, came into the kitchen and Mr. Remus immediately asked him if he would act as a witness.. He was happy to do this and immediately signed as the first of the two attesting witnesses right there at the kitchen table.

7That will is Exhibit 1 on this application. The signature of Mr. Zerbinati is prominently displayed almost immediately above where the attesting witnesses signed. Mr. Biniaris testified that he in fact did not see Mr. Zerbinati sign the will. He testified that" I think [“Tino’s”] dad had already signed it, then I signed". When asked how he knew that the signature was that of the testator he said "I saw he had signed it". He then elaborated "I saw him sign one thing" and asked to see the will so that he could show what he had seen. Regretfully, since no one was disputing that the father had in fact signed the will and the significance of the failure to comply with the Succession Law Reform Act had not been brought home no further attention was paid to this.

8Having signed as a witness Mr. Biniaris left. All this time the testator, Mr. Zerbinati, had remained in the kitchen observing these formalities. Once they were finished he poured everyone some homemade brandy. This gesture might have been to mark the execution of the wills or it might equally have been to mark the wedding of his son, Tino, which was taking place on the same day.

9Ms. Lyn’s evidence differed slightly in that her recollection was that Mr. Biniaris was physically present when Mr. Zerbinati signed his will. Everyone agrees that Mr.Biniaris came upon the scene in the midst of signing. I accept his evidence that he did not see the actual application of the testator’s signature but his arrival was, in his words, "simultaneous” with the signing. I accept that he saw the testator "sign” one thing. Perhaps an initial.

10Whether Mr. Biniaris actually saw the application of the signature to the document seems not to be the issue. The issue under the statute seems to be whether it was done in Mr Biniaris’s presence or, failing that, whether it was acknowledged in his presence.

11The propounders ask me to accept that there has been substantial compliance with the Succession Law Reform Act. I accept the submission of the respondents that there is no room to import a "substantial compliance" provision into the Succession Law Reform Act. See Sills v. Daley (2002) 2003 72335 (ON SC), 64 O,R. (3d) 19 and Re Ettore Estate (2004) 11 ETR (3d) 208.

12Whether the requirements of the statute have been satisfied on the facts is another issue. Cases such as these are determined on the civil standard of proof being a balance of probabilities. That evidence must, however, be scrutinized in accordance with the gravity of the surrounding suspicion. See Vout v. Hay 1995 105 (SCC), [1995] 2 SCR 876. In this case the gravity of the surrounding suspicion as to the authenticity of the testator's signature is very low. This means that very little evidence is required to satisfy the standard of proof regarding compliance.

13Ms. Lyn says the will was signed in Biniaris’s presence. He simply says he did not see the signature applied. The two statements are not inconsistent. I accept that section 4 (b) has been complied with and that the testator made his signature in the presence of both attesting witnesses.

14In the event that mere presence is insufficient there is the issue of acknowledgment to consider. Acknowledgment of the will occurs when there is something in the language used or the conduct of the parties that amounted to an acknowledgment by the testator of his signature. "It is not necessary, however, that the testator should say to the witness ‘this is my signature’ for when the paper bearing his signature is put before two persons who are asked by him or in his presence by someone else, to sign as witnesses that is sufficient" (Hull: Probate Practice (4th ed.) page 65.) While the evidence is sketchy the balance of probabilities is in favour of the proposition that Mr. Biniaris was presented with a paper bearing the signature of the testator and in his presence was asked to sign as a witness.

15The motion for nonsuit is dismissed.