When can a will be signed by someone other than the testator?
One of the formal requirements of a valid will in Ontario is that it is signed by the testator or by some other person in his or her presence and on his or her direction. This means, that a will may be signed by an agent, or by amanuensis. Amanuensis is an assistant who copies or writes from the dictation of another.
By and large, a signature is a formal acknowledgment that one accepts or understands the document they are signing. It is also indicative of consent or that instructions were provided to the will drafting lawyer to draft in a specific manner on the clients’ behalf. However, persons with disabilities or illnesses that render an individual physically incapable may be prevented from signing their will. One option for testators wishing to ensure their wills are valid but may be otherwise incapable of signing themselves is to have the will signed amanuensis.
Signing a will via amanuensis is appropriate where the testator is mentally capable but in pain and suffering from a disability or illness that prevents them from signing the document themselves. The actual person signing the document should not have a beneficial interest in your estate. It is also important that the will be read aloud to the testator so that they may have knowledge of its contents and approve them because it is plausible to assume that if they do not have the physical capacity to write their name, they may also be unable to hold or read their will.
It is important to note that in will challenges concerning wills signed by someone other than the testator, courts have allowed amanuenses to sign their own names rather than the testator so long as they indicate that they were signing at the testator’s direction. Courts have also accepted amanuensis who write the testator’s name along with a sworn affidavit of the situation. Whatever the situation may be, it is important to ensure that all the other formal requirements set out in the Succession Law Reform Act are followed as the estate can open itself to a will challenge if the formalities are not met.