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Witnessing Wills in Newfoundland and Labrador: What does “in the presence of” actually mean?
Section 2 of the Wills Act (Newfoundland and Labrador, the “Wills Act”) sets out the legal requirements for the making of a valid will. To be valid, a will must first of all be in writing.
Formal Execution and Witnessing Requirements
A will that is entirely in the handwriting of the testator and signed by him or her is known as a “holograph will”. It is legally valid under the Wills Act without the need for witnessing.
A will that is not entirely in the handwriting of the testator must comply with the formal execution and witnessing requirements of section 2 of the Wills Act. One of the fundamental roles of a lawyer or notary who prepares wills is to make sure that the final document is signed in conformity with the following rules:
- The testator must sign the will in the presence of two witnesses; and
- The two witnesses must sign the will as witnesses in the presence of the testator.
The same formal requirements apply to a codicil to a will or to an alteration on the face of a will that has previously been executed.
Whether the strictures of section 2 require that both witnesses must actually see the testator inscribe his or her signature on a will or codicil before they sign the document as witnesses to the Testator’s signature was in issue in the decision of the Newfoundland and Labrador Supreme Court in Re The Estate of Alec G. Henley.
All common law provinces of Canada other than Ontario and Newfoundland and Labrador have some form of “substantial compliance” provisions in their will or probate statutes. These are relieving provisions which allow a court to probate a will that may not have been executed in strict compliance with the statutory execution and witnessing requirements for formal validity. Because Newfoundland and Labrador does not have comparable provisions in its Wills Act, the interpretation of section 2 is critical in situations where the legal validity of a will is challenged for not being properly executed and witnessed.
The Facts in Henley
Henley concerned two codicils which were probated together with the Will of the Testator. Justice Carl Thompson of the Supreme Court of Newfoundland and Labrador affirmed the execution and witnessing of the codicils was valid under section 2 of the Wills Act notwithstanding the evidence of the witnesses to the execution of the codicils that they did not actually see the testator sign the codicils before they signed the documents as witnesses.
The testator was a businessman. The execution and witnessing of the two codicils took place on different days but the execution of both was handled by the testator in a similar fashion.
While in his executive office, which was part of a suite of offices for his business, the testator asked one of his employees to type the document for him. The employee who was the typist was also a signing witness to each of the codicils. After preparing and printing each of the codicils in accordance with the testator’s instructions, on each occasion the employee took the document into his office and left it with him to review and returned to her desk.
In each case, the testator reviewed the codicil and signed his name to the document while he was alone in his executive office. On both occasions the testator then summoned the employee who typed the document back into his office to attend to the witnessing the already signed codicils. At the testator’s request the first employee went out to bring another employee in from the outer office area to serve as the second witness.
Although each codicil was signed by two witnesses in the presence of the testator (meeting one of the requirements of section 2 of the Wills Act), the alleged deficiency in both cases was that none of the subscribing witnesses saw the testator sign the document. Notwithstanding that fact, the Court upheld the validity of the codicils under section 2 of the Wills Act which requires that the testator sign “in the presence of” at least two witnesses.
In an oral decision, Justice Thompson emphasized the evidence that the first witness was taking immediate direction from the testator concerning the preparation of both of the codicils and the presentation of the documents to him. The Justice found that although the witnesses did not physically see the testator sign the codicils, the employee who prepared them was intimately involved in the series of events and the employees who were the second witnesses were sufficiently proximate to know in a general way that the document they were asked to witness had just been signed by the testator:
“… you have Mr. Henley’s secretary/assistant preparing a document for him. She is back and forth, they work in the same place, there may be partitions but they are back and forth in the same office room, the same area on the same floor. They are back and forth, she is totally involved in the activity of preparing this document, in fact she is the one typing it and retyping it and in the first case he is also showing her how to format and reformat so it comes out the way he likes. In my view, I would be doing a disservice to this testator with his Codicils by gleaning from the potential that somehow in all of this process, the potential of a technical timing (issue) would serve to defeat the documents. I mean there is just a secure situation we have here, we are in a secure area, the transactions are going on in the same time, both parties, both witnesses knew what was happening…”
Proximity and Intention
There are two aspects of Justice Thompson’s decision in Henley that are noteworthy. First, he expressly stated that the evidence regarding physical proximity and the “controlled” nature of the series of events established that the testator signed each of the codicils “in the presence of” the two witnesses who in turned signed and thus complied with section 2 of the Wills Act. Flexible interpretations of what it means to be “in the presence of” is one technique that other courts have sometimes resorted to in order to find compliance with strict witnessing requirements in wills statutes notwithstanding an absence of perfection in execution and witnessing.
Secondly, Justice Thompson linked the evidence before him to the intention of the testator when he stated: “So in the face of these circumstances, I don’t think it is appropriate for me to defeat what appears to be a very clear intention of the execution and obtaining of confirmation by witnesses under section 2(1).”
The desire to uphold the provable intention of testators is the rationale for the flexibility provided by substantial compliance legislation regarding the proper execution and witnessing of wills and codicils. Legislatures that have made this reform of the law of wills have done so in order to provide probate courts with a principled mechanism for accepting proof of testamentary intention and the authenticity of signatures in cases where compliance with the strict execution and witnessing requirements of wills statutes (which was historically considered to be the sole form of such proof) cannot be shown.
Substantial compliance provisions have now been adopted in eight provinces as a result of probate cases in which courts refused to admit executed and witnessed documents to probate in the absence of clear compliance with the statutory formalities.
Notwithstanding Justice Thompson’s comments about intention, his ruling in Henley is primarily based on his finding that Mr. Henley and the two witnesses were “in the presence of” one another at the time of affixing their signatures. It does not appear to be a decision purporting to assert a judicial doctrine of substantial compliance to overcome slight defects in witnessing.
In the Ontario case of Sisson v. Park Street Baptist Church Justice Murphy stated that courts should not be precluded from developing a “common law doctrine” of substantial compliance where it was required in the interest of justice to testators. However, Justice James Adams of the Supreme Court of Newfoundland and Labrador in Re Murphy Estate rejected the proposition that the Courts should declare a will or codicil valid in the face of clear non-compliance with the Wills Act:
“The Legislature of this Province has not seen fit to amend the Wills Act to allow for substantial compliance and to give a judge in circumstances such as this case latitude to admit to probate a will which does not comply with the Act. It is not for this court to attempt to circumvent clear statutory provision which has essentially codified the common law once the Legislature has stepped in to regularize the rules relating to a particular area of the law. If reform is to be made in this area of the law, it must be left to the legislature and not to the courts. It is open to the Legislature to provide for substantial compliance legislation or to amend the act to allow a will with a subscribing signature of one witness to be sufficient to be admitted to probate.”
What the ruling in Henley does recognize is that factors of the witnesses’ relationship to the testator, their proximity in distance and time to the signing of the document by the testator and to their witnessing of the document in the testator’s presence may collectively be sufficient to place testators and witnesses “in the presence of” one another for the purposes of section 2 of the Wills Act. This may be so even though the witnesses do not see the testator inscribe their signature on the document.
The recent enactment of temporary legislation to allow the flexibility afforded by audio – video technology to facilitate the execution and witnessing of wills during the unusual circumstances of the COVID 19 public health emergency would be a fitting catalyst for legislators in Newfoundland and Labrador to re-examine section 2 of the Wills Act and the conflicting case law in Canadian probate courts surrounding formal witnessing requirements. The issue and the decision in Henley illustrates that it would be worthwhile for the House of Assembly to consider whether it is still appropriate in 2020 to keep the rules for execution and witnessing in Newfoundland and Labrador in their historic but rigid form.
 It is currently possible to meet these formal execution and witnessing requirements through the use of “audio-video technology” under section 6 of the Temporary Alternate Witnessing of Documents Act (Newfoundland and Labrador), which came into force on May 6, 2020 to facilitate the execution of wills during the subsistence of the COVID 19 public health emergency declared under the authority of section 27 of the Public Health Protection and Promotion Act (Newfoundland and Labrador). The Temporary Alternate Witnessing of Documents Act will cease to have effect after the official public health emergency has ended.
 Wills Act, s. 12.
 2013 01E 12144 June 10, 2019 (unreported, referred to as “Henley”).
 A similar result was reached by the Nov Scotia Supreme Court in Johnston Estate, Re, 2001 NSSC 133 (NSSC) which was decided before the adoption of substantial compliance provisions in Nova Scotia.
 See for example the cases prior to substantial compliance reform in British Columbia and Nova Scotia of: (i) Morris v. Morris, 1993 CarswellBC 727 (BCSC); (ii) Toomey v. Davis, 2003 BCSC 1211 (BCSC); and (iii) MacDonald v. MacDonald Estate, 2009 NSSC 323. See also the Ontario case of Sills v. Daley (2003), 64 O.R. (3d) 19 (OSCJ).
  O.J. No. 2885; 71.0.T.C. 35 (Gen. Div.) at paras 38-40.
 1999 CanLII 19838 (NLSC).