Signing a Testator’s Will for them - Using an Amanuensis
Does a testator have to sign his or her own Will to be valid? A little used provision of the Succession Law Reform Act permits a Will to be signed by some other person (an “amanuensis”) in testator’s presence and by the testator’s direction. Our colleague, Suzana Popovic-Montag, wrote several blogs (Click here to read blog) on this very topic.
Historically, this process was rarely resorted to. In my career, I only used it once - a client was physically unable to sign his name. With the logistical issues associated with execution of wills by video-conference, it may be that this manner of execution may become more widely used.
If this is to be done using presence by video conference, we are recommending a few steps (in addition to the other instructions for executing a will by audio-visual communication technology):
1. Confirm with the Client the exact Will document to be signed (“Approved Will”). Here are some options:
A) Have the client approve the draft in advance and marking approval by initialing on each page then scanning and emailing you the Approved Will.
B)Identify the Approved Will by including specific identifying information in the Footer of the document, e.g. “Will Draft 2.1 – April 12, 2020 11:45am”. (Click here for how to do this)
2. On video conference, with the other witness present, have the client direct you to sign the Approved Will on his behalf. “I direct you to sign the Will (identify the Will – e.g. “Will draft 2.1 April 12, 2020 11:45am” or “the document with my initials that I emailed to you at 10:55am on April 12, 2020) on my behalf.”
3. On the testator’s signature line, consider including language such as:
“Signed on behalf of the testator, in his presence, and by his direction by me, John Smith”.
4. Make sure that the witnesses* are in the presence of the testator, the amanuensis and the other witness(es) throughout the direction and signing of the Will.
5. When signing, the case law supports the amanuensis signing his or her own name or signing the testator’s name. Professor Oosterhoff in his seminal text Oosterhoff on Wills and Succession, suggests that signing the testator’s name is preferable, though not strictly required.
6. *Professor Oosterhoff also states that it appears that under common law, the amanuensis may also act as one of the witnesses. However, note that Alberta's Act expressly provides that an amanuensis may not act as a witness.
7. Our rule of thumb -always listen to Professor Oosterhoff!
The testimonial clause should be amended. Here is a sample one:
“SIGNED, PUBLISHED AND DECLARED at the direction of, and acknowledged by, the said Testator, as and for his last Will, in the presence of us, both present at the same time, who, at his request, in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses.”
Additional statements in the Affidavit of Execution should be included as well. Here is some sample language.
1. On ________ , [Testator’s full name] directed me to sign on his/her behalf as his/her amanuensis and in his/her presence by audio-visual communication technology, the document marked as Exhibit "A" to this affidavit as his/her amanuensis.
2. [Testator’s full name] directed me to sign his/her Will on his/her behalf because of social distancing measures in effect.
Note that the Substitute Decisions Act, 1992 does not specifically permit execution by amanuensis for Powers of Attorney.
We continue in unchartered waters and we welcome any suggestions or comments.