Estate Planning

STAMP = SIGNATURE?

By Hull & Hull LLP

Does the act of a paraplegic testator in stamping his will with a stamp bearing his name constitute the act of signing the will within the meaning of section 4(1)(a) of the Succession Law Reform Act (“SLRA”)? 

That was the question that was posed to the Honourable Justice D. M. Brown in the matter of The Estate of Gerald Francis Clarke, 2008 CanLII 45541 (Ont. S.C.) released September 12, 2008.

There, the Applicants applied for a Certificate of Appointment of Estate Trustees for the estate of the late Gerald Francis Clarke.  The Application appears to have been unopposed.

The affidavit of execution indicated that the testator was a paraplegic and unable to take a pen in his hand to sign or initial the pages of his will.  The witness deposed that he saw the testator execute his will by placing a stamp which reads “Gerald F. Clarke” on the signature line at the end of the will and on each page of the will.  The witness further deposed that the testator executed the will in the presence of himself and another witness, as attesting witnesses.

Section 4(1)(a) of the SLRA provides that a will is not valid unless “at its end it is signed by the testator or by some other person in his or her presence and by his or her direction”. 

The Court relied upon In Re Bradshaw Estate, [1988] N.B.J. No. 709 (P.C.). There, in interpreting a similar provision in the New Brunswick Wills Act, the Court formulated the applicable test as follows:

(i) were the markings on the will made by the testator, and

(ii) were they intended as his signature and to represent the best that the testator could do by way of writing his name under his physical circumstances? 

Brown J. held that this test should be applied in determining whether a testator had complied with s. 4(1)(a) of the SLRA.

Brown J. concluded that on the evidence before him, the testator stamped the will with a stamp bearing his name and that his stamping of the will in that manner represented the best that he could do by way of writing his name given his physical circumstances. 

A Certificate of Appointment issued with respect to the stamped will.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on September 22, 2008 (boomark / email).