Tuesday, October 8, 2013

Where wills presumed to meet formal requirements.

Yen Estate v. Chan, 2013 BCCA 423 holds that in the absence of suspicious circumstances or contrary evidence, the trial judge was entitled to rely on the rebuttable presumptions that the execution of the will complied with the requirements of s. 4 of the Wills Act and that the testator was aware of and approved the contents of the will:


[14]        The Ontario Court of Appeal upheld the use of the presumption by the trial judge.  The Court adopted the interpretation of the Latin maxim of the presumption from the reasons of Lord Justice Lindley in Harris v. Knight (1890), 15 P.D. 170 (C.A.) at 179-80:

The maxim, “Omnia praesumuntur rite esse acta,” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.

The circumstances in Harris v. Knight were similar to the present case – both of the subscribing witnesses were dead and there was no direct evidence with respect to the signing of the will by one of the witnesses.  The majority of the English Court of Appeal upheld the use of the presumption that the will had been duly executed.


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