Ontario court invalidates purported will of testator suffering from impairment due to stroke

Medical expert evidence showed that the signature on the will is not the testator’s signature

Ontario court invalidates purported will of testator suffering from impairment due to stroke

The Ontario Superior Court o Justice declared the purported will of a deceased man invalid after finding that his impairment due to a stroke made it impossible for him to have executed and signed the document.

In Riddle v. Nielsen, 2022 ONSC 5895, the testator, Larry Riddle, suffered a major stroke while with the respondent in Myrtle Beach in March 2019. He underwent two surgeries and remained in a hospital in Myrtle Beach for three weeks. In April 2019, he was transferred to Kingston General Hospital (KGH) and did not leave the hospital until his death in June 2019. For most of his hospitalization in Kingston, the testator remained in the ICU.

In late April 2019, the respondent picked up the testator’s draft will from a lawyer. The lawyer was unaware of the extent of the testator’s medical condition and did not inquire whether the testator had the physical ability or the capacity to sign the will.

The applicant filed an application with the Superior Court to seek a declaration that the testator’s purported will, dated May 17, 2019, is invalid. He alleged that the profound nature of the testator’s impairment rendered it impossible for him to have executed and signed the document.

Meanwhile, the respondent alleged that the application was motivated by “malice and hate.” She alleged that the testator signed his name on and initialled each page of the purported will in the presence of two attesting witnesses on May 17, 2019. She also alleged that the testator signed two power of attorney for property and personal care on the same day.

In its decision, the Superior Court granted the application and declared the May 17, 2019, will invalid.

 To meet the requirements of s. 4(2) of the Succession Law Reform Act, the court noted that the onus is on the respondent to establish that the testator signed the will in the presence of the two witnesses, who were present at the same time, and the witnesses then signed in the testator’s presence. It also noted that medical evidence could be relied upon concerning the validity of the execution of a will.

However, based on the medical expert evidence of Dr. Bagg, a physical medicine and rehabilitation specialist, the court found that the signature on the will that reads “Larry J. Riddle” is not the testator’s signature.

According to the court, Bagg analyzed the alleged signatures on the will and the powers of attorney dated May 17, 2019 − all of which are legible and on the signature line − and the alleged signatures in light of a sample of the testator’s handwriting from April 17, 2019. He noticed that the April 17, 2019, handwriting is “barely legible and not written in a straight line.”

The court agreed with Bagg’s view that given the nature and severity of the testator’s stroke, the evidence of his severely impaired handwriting on April 17, 2019, and concerns about delirium, it would have been impossible for him to have signed the will in such a legible fashion.

Moreover, the court accepted Bagg’s opinion that the testator did not have the cognitive or physical capacity to sign his initials on the will, and it is improbable that the testator’s condition fluctuated to the point that he was unable to write clearly on April 17, 2019, and then regain the ability to clearly sign his signature one month later on May 17, 2019.

“In fact, the hospital records confirm that Larry’s medical condition deteriorated between April 17 and May 17, 2019: on April 30 and again, about a week later, Larry was moved back to the highest level of ICU at KGH,” Justice Ryan Bell wrote.  

The court concluded that since it cannot find that the signature on the will is the testator’s signature, there is no need to consider the applicant’s alternative allegations of suspicious circumstances surrounding the alleged execution of the will or the testator’s lack of capacity.

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