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Old Wills, Old Witnesses, Old Lawyers – Presumption of Due Execution

Mr. Yen died at the age of 98, leaving a Will that was executed 37 years ago. In that Will, Mr. Yen had left his entire estate to his spouse, if she survived him. In the event his spouse did not survive him, the estate would be divided equally among his 3 children or survivors of them. In fact, Mr. Yen had 4 children, but at the time Mr. Yen executed his Will, one of his 4 children, L, had predeceased him. L left small children of her own, who, along with Mr. Yen's other grandchildren, were not mentioned in the Will, and an action was commenced by these grandchildren who challenged the Will.

When Mr. Yen died in 2010, his spouse had predeceased him. Accordingly, the surviving children of Mr. Yen were the beneficiaries under the Will.

The issues at trial and upon appeal were (a) whether the formalities of execution of the will had been proven, and (b) whether Mr. Yen knew and approved of the contents of the will.

In terms of the formality of the Will, the Will had met the requirements under the Wills Act. Mr. Yen's signature was verified by one of his children. There were two witnesses, one of which was a lawyer (presumably the lawyer who prepared this Will) who died in 2006. The other witness may have been the lawyer's assistance, but her identity could not be ascertained. In any event, the names and the signatures of the witnesses could be seen on the Will, with proper attestation clauses. The lawyer's signature was also verified by the Law Society. There was nothing on the face of the Will which suggested suspicious circumstances.

Both the trial court as well as the Court of Appeal found that the court was entitled to rely on the presumption of due execution, in the absence of suspicious circumstances or contrary evidence.

The court ruled in favour of the Estate and found Mr. Yen's Will to be proven in solemn form.

WRITER'S THOUGHT: Update your Will. Unless barred by loss of capacity, one should look into updating his/her Will every 10 to 15 years. Even if there has not been any major changes in the testator's life during that period, it's worth having it reviewed by a lawyer if it has been more than a few years since the Will was executed.

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