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BAYFORD V. BOESE 241

Bayford v. Boese et al.

[Indexed as: Bayford v. Boese]
2021 ONCA 442
Court of Appeal for Ontario, Doherty, Nordheimer and Harvison Young JJ.A.

June 22, 2021

Civil procedure — Appeal — Fresh evidence — Plaintiff claiming to have found will executed by testator but lacking signatures of witnesses, then finding second version of will properly signed and witnessed — Defendant claiming that plaintiff created second version from first — Exhibits at trial were copies of both versions — Handwriting expert testifying that testator’s signature on one was a copy of signature on the other — Plaintiff held to have proven formal validity — On appeal by defendant, plaintiff moving to file original of second version as fresh evidence — Motion dismissed as existence of second version did not explain what happened to original of first.

Wills and estates — Wills — Formalities — Validity — Plaintiff claiming to have found will executed by testator but lacking signatures of wit- nesses, then finding second version of will properly signed and witnessed — Defendant claiming that plaintiff created second version from first — Handwriting expert testifying that testator’s signature on one was a copy of signature on the other — Plaintiff held to have proven formal validity — Defendant’s appeal allowed — Trial judge misapprehended significance of expert evidence, which cast doubt on validity of second version.

The defendant’s brother instructed his lawyer to prepare a will in 2013. The testator died in 2015. His long-time friend, the plaintiff, searched for a will at his house and claimed to have found one dated August 15, 2013 with “DRAFT” stamped on every page. It was signed by the testator but not by any witnesses. A copy of that document was marked as an exhibit at trial and was identified as Version 1. When the plaintiff found it she took it to the lawyer’s office, where she was given a copy. After a chance encounter with one of two persons who claimed to have witnessed the will, the plaintiff returned to the home and found a will that was signed and witnessed by two witnesses. A copy of that will was marked as an exhibit and identified as Version 2. There was no dispute that the will named the plaintiff as the sole trustee of the estate and left her the testator’s farm. The defendant’s position at trial was that the plaintiff, with the cooperation of the two witnesses, created Version 2 after she discovered that Version 1, though signed, was not valid. Both witnesses testified that they saw the testator sign the will and that they each signed as witnesses, although there were some discrepancies in the details. No original of either Version 1 or Version 2 was produced at trial, with the plaintiff stating variously that she had misplaced Version 1 or had given it to her lawyer. The trial judge accepted the plaintiff’s evidence on all points where it conflicted with that of other witnesses, and accepted her evidence about the circumstances of finding Version 2. A handwriting expert was qualified to give evidence as to whether Version 1 and Version 2 were forgeries, and whether the testator’s signature on one was a copy of the signature on the other. The expert testified that she was unable to draw a conclusion as to whether the testator was the person who signed the two versions, but she identified the two documents as having copies of the same signature, which she explained was important because no one wrote exactly the same way twice. The trial judge held that the plaintiff had discharged her burden to prove the formal validity of the will. The defendant appealed.

Held, the appeal should be allowed.

The trial judge misapprehended the evidence. She understated the content of the expert’s opinion and it was not at all clear that she appreciated its significance. That evidence established that the testator could not have signed both Version 1 and Version 2 separately with original signatures. There was nothing in the trial judge’s reasons to indicate that she understood that if the signature on Version 2 was a copy from or the same as the signature on the unwitnessed Version 1, and not simply another original signed at another time in the presence of two wit- nesses, there would have been significant reason to doubt the validity of the Version 2 will. The judge’s failure to grapple with the evidence supporting an inference that the witnesses signed Version 1 after the testator’s death was a serious error in the circumstances. Had she clearly understood the potential implications of the expert’s conclusion, she most likely would have approached the other evidence somewhat differently. Had she been alive to the essence of the defendant’s claim and the significance of the expert evidence, which she did not reject, she still might have resolved the inconsistencies as she did. But her dismissal of all the inconsistencies in the plaintiff’s favour went to the heart of the case and its outcome. The misapprehension of the expert evidence was obvious and essential to her conclusion that Version 2 was valid and constituted palpable and overriding error.

The plaintiff’s motion to file the original of Version 2 was dismissed as the evidence did not meet the test for admission. The existence of Version 2 was not likely to conclusively establish validity because it did not explain what happened to the original Version 1.

R. v. Palmer, [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171, 1979 CCAN ¶10,018; Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, [1994] O.J. No. 276, 111 D.L.R. (4th) 19, 69 O.A.C. 312, 25 C.P.C. (3d) 61, 2 R.F.L. (4th) 232 (C.A.), apld

Other cases referred to

Carmichael v. GlaxoSmithKline Inc. (2020), 151 O.R. (3d) 609, [2020] O.J. No. 3002, 2020 ONCA 447, 450 D.L.R. (4th) 357, 53 C.P.C. (8th) 215 [Leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 409]; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1; R. v. Morrissey (1995), 22 O.R. (3d) 514, [1995] O.J. No. 639, 97 C.C.C. (3d) 193, 80 O.A.C. 161, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4, 26 W.C.B. (2d) 436 (C.A.); Vout v. Hay, [1995] 2 S.C.R. 876, [1995] S.C.J. No. 58, 125 D.L.R. (4th) 431, 183 N.R. 1, J.E. 95-1367, 82 O.A.C. 161, 7 E.T.R. (2d) 209; Waxman v. Waxman, [2004] O.J. No. 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165, 2004 CanLII 39040 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291]

Statutes referred to

Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 4(1) [as am.]

APPEAL from the judgment of Corthorn J., reported at [2019] O.J. No. 4927, 2019 ONSC 5663 (S.C.J.), that plaintiff had estab- lished formal validity of a will.

Earl A. Cherniak, Q.C., Ian M. Hull and Doreen Lok Yin So, for appellant.

Taayo Simmonds, for respondent.

 

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