Can You Execute Your Will in Ontario by Blinking?

By Yasmin M. Vinograd of Merovitz Potechin LLP on Tuesday November 5, 2019.

A decision in the Texas court of appeal has raised some interesting discussions regarding the execution of wills. In Estate of Luce, the Texas court of appeal found that even though the testator drafted his will only by blinking, the will was valid and created with testamentary intent and capacity. Let’s take a look at this decision from the Texas courts and how this unique situation might be handled here in Ontario.

Drafting a will when you are physically unable to sign

Estate of Luce (No. 02-17-00097-CV, 2018 Tex. App. LEXIS 9341) involved a victim of an accident in 2015 that left the testator paralyzed from the chest down and unable to speak. However, he was able to establish a system to communicate whereby he blinked to indicate either Yes or No to questions. With his lawyer at his hospital bedside, he drafted a will by answering leading questions and revoked his previous wills, leaving his estate to his daughters and not his estranged wife. The will was signed by a notary with two witnesses in the presence of the testator at the hospital.

When the will was challenged in court by the estranged wife, the court found that the accident had not caused any brain or head trauma, and that the testator was still lucid and had the mental capacity to make decisions regarding his estate when he drafted the will.

How to execute a will in Ontario

Would this case be handled the same in the Ontario court system? To execute a will in Ontario, one of two methods can be used:

Typed

A will can be typed and printed. Section 4 of the Succession Law Reform Act (the Act), sets out the three formalities that need to be met for a typed will to be properly executed:

(a) it must be signed by the testator or by some other person in the testator’s presence and by the testator’s direction;

(b) the testator’s signature must be witnessed by 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.

Handwritten

According to Section 6 of the Act, a handwritten will is valid if it is in the testator’s hand writing and is signed. No witness is required.

Would Ontario allow the execution of a will by blinking?

Returning to the three formalities required for a typed will in Ontario, it is possible that a will drafted by blinking could be accepted in Ontario provided it meets these three formalities and provided that the testator had the required testamentary capacity.

It is important to note that this situation has not been tested yet in Ontario, so it remains to be seen how it will be treated by the courts. One of the main challenges would be showing that the will was signed at the testator’s direction. An English decision, which deals with a very similar provision under the English Wills Act as Ontario’s, found that the requirement of “direction” to sign a will suggests that the testator must take a more active and positive role than a mere “acknowledgement”.  The court did confirm, however, that this communication by the testator could be non-verbal. In light of that decision, the question in this case becomes whether “blinking” amounts to a “direction”.  Given that this question hasn’t been determined by the Ontario courts yet, only time will tell.

There are protections in the Act for the scenario where a will is signed for the testator by another person. When a will is signed according to the requirements of Section 4, the person signing the will for the testator cannot be deriving benefits from the will. It must be signed by someone who is not a beneficiary. The will would still be valid if it was signed by a beneficiary on behalf of the testator, however the specific benefits to that person would be void.

Drafting a will involves a variety of important considerations and mistakes can lead to a will challenge. If you have questions regarding the drafting of wills or their validity, contact the experienced wills & estate lawyers and estate litigation lawyers at Merovitz Potechin LLP.