In Riddle v. Nielsen, 2022 ONSC 5895, the Ontario Superior Court of Justice was asked to declare that a will was invalid by the son of the will-maker as there was a question as to whether the testator had actually signed the will in question. 

This case highlights the importance of creating a will in accordance with the requirements for a valid will. Creating an estate plan can be complex and uncertainties regarding the validity of a will can create challenges or disputes, leading to litigation down the road. 

Circumstances Leading up to the Signing of the Will 

The testator, Larry Riddle, had four children from a previous relationship. He had entered into a common-law relationship with the respondent, Barbara Neilsen, in 2000 and the couple remained together until his death in 2019. 

Two weeks before travelling to Myrtle Beach for a holiday, the testator met with a lawyer to prepare his will, but he did not sign the will before his holiday. Unfortunately, while in Myrtle Beach, the testator suffered a stroke, heart attack and seizure and underwent surgery before being stabilized and transferred to a hospital in Kingston. 

While in the hospital, Ms. Neilsen picked up the will and received instructions from the lawyer for signing. The lawyer did not witness the will-maker’s signature and while he was told that the will-maker was in the hospital for “heart issues”, the lawyer did not understand the full extent of his condition or ask whether the will-maker could sign the will. 

On May 17, 2019, the will-maker signed his will in the presence of two witnesses. He also signed a power of attorney for property and a power of attorney for personal care. The testator passed away in June 2019.  

The Parties’ Positions Regarding the Will Signing 

One of the testator’s children, the applicant, Cory Riddle, applied for a declaration that the will was invalid. Specifically, the applicant claimed that his father could not have appropriately executed the document because he had a major stroke. One of the applicant’s siblings filed an affidavit supporting the application. 

Ms. Neilsen contested the application claiming that the applicant had insufficient medical evidence to support the application. She also claimed that the applicant was motivated by “hatred and malice” towards her rather than a genuine concern regarding the validity of the will. 

The Court’s Consideration of the Will Signing

The Court began its analysis by referring to s. 4(2) of Ontario’s Succession Law Reform Act, RSO 1990, c S.26, which states that a valid will must be signed by the will-maker (or by another person, at the will-maker’s direction) in the presence of two witnesses. In a case challenging the validity of the will, the person claiming that the will is valid, in this instance, Barbara, must establish that the will was signed following the requirements.

The parties each relied on medical evidence and hospital records regarding the testator’s ability to sign the will in his condition. Upon review of the evidence, the Court determined that the signature on the will was not the testator’s signature, therefore the will was invalid. 

The Court’s Decision Regarding the Validity of the Will Signing

The Court’s review of the medical evidence showed stark differences compared to the respondent’s assertions. She claimed that the testator had been sitting up in his hospital bed at “about a 45-degree angle” on the day his will was allegedly signed. However, the ICU chart reported that the will-maker had been lying on his side, turned over throughout the day and was experiencing “left-sided hemiparesis and aphasia” which rendered him incapable of signing documents while lying on his right side. The respondent claimed that the testator was able to pick up knives and forks and brush his teeth on the day he signed the will, however, hospital records indicated that the testator had been unable to squeeze his fingers on the day in question. 

Two medical experts were consulted in the case. The specialist whose opinion was ultimately adopted by the Court noted that the signature in question would have been “impossible” for the testator to sign so legibly given his condition, along with comparisons to a sample signature from one month before the alleged will signing. Based on his condition at the time of the alleged signing, the testator did not have the cognitive or physical capacity to sign the will. 

Though the applicant also provided alternative submissions alleging that there were suspicious circumstances surrounding the execution of the will, the Court did not consider these submissions as they were satisfied that the will was invalid based on the medical evidence provided. 

The Importance of Executing a Valid Will 

While the circumstances, in this case, were questionable, a will-maker must take great care to ensure that any estate documents are created and signed following the applicable laws and statutes. Notably, Ontario’s Succession Law Reform Act, RSO 1990, c S.26 has several strict requirements that will-makers must follow to avoid a declaration of invalidity after their passing.

Contact the Wills & Estates Lawyers at Campbells LLP in Oakville for Estates Planning 

Protecting your assets and ensuring your loved ones are provided for after your passing can be a difficult concept to plan for. However, effectively managing your wealth and protecting your estate is something that everyone should do to ensure that their express wishes are carried out. To help ensure that your wishes will be carried out as specified, it is important to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our lawyers have extensive experience helping clients with wills and estates matters. Contact us online or call our office at (905) 828-2247 to speak with a member of our team regarding your estate plan.