Something that is often forgot throughout lengthy, expensive and emotionally exhausting estate litigation cases is that the court is taking so much care and diligence, and thus time, in hearing these cases because they are trying to determine the intentions of a person who has passed.
This task is rendered all the more difficult if there is ambiguity in wording, missing information or uncertainty in which is the true last Will of the testator. The focus for today’s blog is the latter of these issues: verifying a true last Will and Testament.
The ‘ambiguity’ in determining the authenticity of a Will can take a large amount of time and expense: from a hand-writing expert’s time, a lawyer’s time to prove the case and the expense of litigation to determine acquiescence to formalities and validity of the Will. In this digital age, it is not shocking that some have turned to videotaping Will signings in an attempt to demonstrate capacity of the testator and authenticity of the Will.
The videotape would be a helpful tool in ascertaining that the required formalities were followed (that the will be written/typed, and signed by two witnesses in front of each other). However, the use beyond this is not as guaranteed as one would assume. In one case where a handwritten will was videotaped being read aloud and signed (Tucker v Tucker Estate, 2009 CanLii 1664 ONSC) the judge stated that “the making of the videotape itself [was] suspicious” (para 39). The sentiment from the court being that aboveboard proceedings would not require the forethought of a videotape (supra). In this case the Will, being surrounded in suspicious circumstances and what was determined to be undue influence, was deemed not valid. Even with the videotape evidence showing the testator signing the will, agreeing with the changes being made and stating and demonstrating capacity. The concern is accurately summed-up in the Judge’s concern that a videotape was involved at all in the first place.
The use of the tape also opens doors for those who contest the Will due to capacity. Most people have, at one point or another, confused the names of children or siblings in conversation with no one blinking an eye. However, if a signing is done on tape and the testator stumbles on words or confuses a name, an opportunity to question capacity opens. Where if there was no video and the court was relying on testimony of those present, it is unlikely to stumbling over names or words would even be remembered given that it isn’t an uncommon occurrence. The option of filming more than once to fix a stumble is even worse because it is guaranteed that the contestant will ask how many ‘takes’ there were. Any more than one will lead to accusation that multiple attempts were needed to get a ‘clean’ take.
All in all, a videotape may seem helpful, but it is not common practice as of yet, and its use may still be meet with suspicion. More than this, it may be met with new openings to question capacity, the very opposite of what the videotape sets out to do.
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