Bayford v. Boese (2019 ONSC 5663)
Real estate professionals often hear the phrase, “It’s just a signature.”
In reality, a signature and the circumstances surrounding it, can determine whether an important legal document is enforceable. A recent Ontario decision illustrates just how significant proper execution can be.
The Case
In Bayford v. Boese (2019 ONSC 5663), the Ontario Superior Court was asked to determine whether a Will had been properly executed.
Bruce Boese owned a 22-acre farm near Arnprior, Ontario. He never married and had no children. For more than twenty years, his close friend, Brenda Bayford, helped him operate the farm and manage much of its business affairs.
In 2013, Bruce instructed his lawyer to prepare a new Will. The new Will left the farm to Brenda while dividing the remainder of the estate among his nieces and nephews.
After Bruce died in 2015, however, the validity of that Will was challenged.
The Challenge
Bruce’s brother did not argue that Bruce lacked mental capacity.
He did not claim Bruce was pressured or unduly influenced.
He did not even dispute that the Will accurately reflected Bruce’s wishes.
Instead, the challenge focused entirely on execution.
He argued that:
- Bruce never signed the Will; or
- if he did sign it, he did not sign it in the presence of the two witnesses required by Ontario law.
Those arguments, if successful, would have invalidated the entire Will.
The Missing Copy
The dispute became more complicated because two different copies of the Will were discovered after Bruce’s death.
One copy contained Bruce’s signature but no witness signatures.
A second copy contained Bruce’s signature together with the signatures of two witnesses.
The objector alleged that the properly witnessed version had been fabricated after Bruce died.
That was a very serious allegation.
The Court Examines the Evidence
The Court carefully reviewed the evidence from:
- the beneficiary;
- the lawyer’s legal assistant who prepared the Will;
- both witnesses who allegedly observed Bruce sign the document; and
- a forensic handwriting expert.
The handwriting expert could not conclude that Bruce’s signature had been forged.
More importantly, both witnesses testified independently that Bruce personally asked them to witness his signature, watched him sign the Will, and then signed it themselves in his presence.
Although each witness remembered minor details differently several years later, the judge considered those differences entirely normal.
In fact, the Court noted that minor inconsistencies often support credibility because they demonstrate that witnesses are recalling events honestly rather than rehearsing identical stories.
The Decision
The Court found that the Will had been properly executed in accordance with Ontario’s Succession Law Reform Act.
The evidence established that Bruce signed the Will in the presence of both witnesses, and they signed in his presence.
Accordingly, the Court declared the 2013 will valid.
Bruce’s wishes were carried out exactly as he intended.
Why This Matters to Real Estate Professionals
Although this was an estates case, the lessons apply equally to real estate transactions.
Every day, real estate professionals oversee the signing of:
- Agreements of Purchase and Sale;
- Amendments;
- Waivers;
- Notices;
- Guarantees;
- Powers of Attorney; and
- numerous disclosure documents.
If the execution of those documents is later challenged, years may pass before witnesses are called upon to remember exactly what occurred.
Small procedural mistakes can become expensive litigation.
Practical Lessons
This decision reinforces several practical principles:
1. Follow the signing requirements precisely.
Do not take shortcuts simply because everyone is in a hurry.
2. Ensure all required signatures are obtained before anyone leaves.
A missing signature discovered later can create enormous uncertainty.
3. Keep complete records.
Maintain copies of every version of every document and record when and where they were signed.
4. Witness carefully.
If you are serving as a witness, actually observe the person signing. Never sign later or assume someone else watched the execution.
5. Document unusual circumstances.
If anything about the signing process is out of the ordinary, make contemporaneous notes.
Consideations
The dispute in Bayford v. Boese was not about what Bruce wanted. Everyone accepted that.
The litigation arose because questions were raised about how the document had been executed.
Proper execution is not merely a technical requirement. It is the legal foundation upon which important documents stand.
For real estate professionals, careful attention to signing procedures is one of the simplest and least expensive ways to avoid future litigation.
As this case demonstrates, a few minutes spent ensuring documents are properly executed today may prevent years of courtroom litigation tomorrow.
It should be noted that while “witnesses” were commonplace prior to Covid, they have now become rather rare, particularly with electronic signatures.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com