COURT FILE NO.: CV-23-00091606-00ES

DATE: 2023/07/28

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF CLAUDE LORTIE, deceased

RE: Denis Lortie and The Bank of Nova Scotia Trust Company, Applicants AND Paola Lortie, Eric Lortie, Katrina Lortie and Marc Lortie, Respondents

BEFORE: Justice R. Ryan Bell COUNSEL: Matthew Furrow and Terri Stein for the Applicants HEARD: July 27, 2023

ENDORSEMENT

Overview

1This was an unopposed application for a declaration and order that the Last Will and Testament of Claude Lortie, dated May 5, 2020 (the “Will”) meets the formalities of execution required by s. 4(2) of the Succession Law Reform Act (“SLRA”).¹ At the conclusion of the hearing, I advised that the application was granted and that I would provide brief written reasons. These are my reasons.

2On May 5, 2020, the deceased signed the Will at its end in the presence of two of his neighbours, Ms. Riel and Ms. Pelletier. Ms. Riel and Ms. Pelletier initialed or signed every page of the Will, except the last page, as witnesses. They did not sign the last page of the Will or the attestation clause.

3The deceased died on September 28, 2021. He was survived by two sons, the applicant Denis Lortie and the respondent Marc Lortie, and by his grandchildren, the respondents Eric Lortie and Katrina Lortie. The respondent Paola Lortie is the deceased’s daughter-in-law.²

4As a preliminary matter, I made an order abridging the time for service on Marc. His interest in the Estate is not affected by the outcome of the application because his interest is the same under both the Will and the 2017 Will to which I now turn.

The 2017 Will

5The deceased executed a previous will, prepared by his solicitor, on December 21, 2017. The 2017 Will named The Bank of Nova Scotia Trust Company and Denis jointly as executors and trustees. The 2017 Will included specific bequests to each of the respondents. It established a Henson trust for Marc and directed the transfer of $700,000 and any secondary vehicle owned by the deceased at the time of his death to the trust. The deceased’s personal property and the residue of the estate were left to Denis.

Preparation and execution of the Will

6In early 2020, Claude contacted his solicitor to discuss updating his will. He wished to reduce specific bequests to Paola, Eric and Katrina, but otherwise wanted to maintain the terms of the 2017 Will, including the same gifts to Denis and Marc.

7The solicitor drafted the Will as instructed. The Will was ready to be executed in early May 2020. Because it was not, at that time, permissible to witness a will by videoconference, the solicitor arranged for a copy of the Will to be delivered to Claude, together with written instructions on how it should be witnessed.

8In keeping with the written instructions from his solicitor’s office, Claude signed the Will at its end in the presence of his neighbours, Claire Riel and Irene Pelletier, on May 5, 2020. Ms. Riel and Ms. Pelletier signed the Will as attesting witnesses. They initialed or signed every page of the Will with the exception of the last page. They did not sign the last page of the Will with the attestation clause.

9The executed Will was returned by Claude to his solicitor with a handwritten letter in which he stated that he was enclosing “a copy of the last Will duly signed.” The absence of the witnesses’ signatures at the end of the Will was only discovered by the solicitor after Claude’s death.

Analysis

10The requirements for the formal validity of a will are set out at s. 4(2) of the SLRA. Subject to certain exceptions not applicable to this case, 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.

11Section 4(6) of the SLRA provides; “Where witnesses are required by this section, no form of attestation is necessary.”

12Ms. Pelletier initialed every page except for the last page of the Will. Ms. Riel signed the first two pages, and initialed all of the remaining pages with the exception of the last page.

13The issues I must determine are: (i) whether Ms. Pelletier’s initialing of the Will is sufficient attestation; and (ii) whether the witnesses’ subscriptions need not be placed at the end of the Will.

(i) Initials suffice as attestation

14The SLRA provides that no specific form of attestation is necessary for a witness: SLRA, s. 4(6).

15In Re Dunlop, the court relied on Hindmarsh v. Charlton, a decision of the House of Lords, for the propositions that “to make a valid subscription of a witness, there must be the name or some mark which is intended to represent the name” and “[t]he subscription must mean such a signature as is descriptive of the witness, whether by a mark or initials, or by writing the full name.”³

16In Connor Estate v. Worthing,⁴ the court considered s. 4 of British Columbia’s Wills Act, a provision substantially identical to s. 4(2) of the SLRA. Like s. 4(2), s. 4(a) of the British Columbia legislation requires that a will be signed by the testator (or someone on their behalf, with direction and in the presence of the testator) for the will to be valid. Section 4(c) of the British Columbia legislation requires that two witnesses “subscribe” the will. In Connor Estate, the court concluded that if the legislature had intended the same requirements to apply to the witnesses and the testator, the word “sign” could have been included in s. 4(c); however, by using the term “subscription” instead, the court concluded that “the legislature presumably intended something different”: Connor Estate, at paras. 33-35.

17I agree with the reasoning of the court in Connor Estate. I find that Ms. Pelletier’s initials on the Will suffice as subscription within the meaning of s. 4(2) of the SLRA.

(ii) The witnesses’ subscriptions need not be placed at the end of the Will

18Section 4(2)(c) of the SLRA does not specify where the witnesses to a will are to subscribe the will. By contrast, s. 4(2)(a) expressly requires that the testator sign the will “at the end.”

19It is not necessary that the signatures of the witnesses be at the end of the will. A witness’ subscription may be placed on any part of a will, provided it is made in the presence of the testator and with the intention of attesting to the testator’s signature: Re Donnelly,⁵ Connor Estate, at para. 41; Feeney’s Canadian Law of Wills, 4th ed., at 4.3B.⁶ In Re Donnelly, the witnesses had signed in a blank space intended for the names of the executors. The court admitted the will to probate reasoning that “[i]t is not necessary that the signatures of the witnesses be at the foot or end of the will” and “[t]he law does not require that the attestation should be in any particular place, provided the evidence satisfies the Court that the witnesses in writing their names had the intention of attesting.”⁷

20Ms. Riel and Ms. Pelletier, the witnesses to the Will, subscribed, with their initials or signatures, all pages of the Will, with the exception of the last page, in the testator’s presence. Both witnesses swore affidavits of execution confirming they intended to subscribe the Will as attesting witnesses. Their subscriptions did not need to be placed at the end of the Will.

Conclusion

21The Will meets the requirements for formal validity under s. 4(2) of the SLRA.

22Judgment has been signed in the form submitted by the applicants.

Footnotes

1. 1R.S.O. 1990, c. S.26.
2. 2For clarity, I have referred to the parties by their first names.
3. 3Re Dunlop (1928), [1929] 1 D.L.R. 542, at 543 (Ont. Co. Ct.).
4. 42020 BCSC 150.
5. 5(1925), 27 O.W.N. 412 (Surr. Ct.).
6. 6James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis Canada, 2000-).
7. 7Re Donnelly, at 413-414.