Due Execution of Wills and the Case of Bayford v Boese

  • March 03, 2022
  • Jennifer A.N. Corak, partner, Miller Thomson LLP

A deceased individual’s will can be challenged for a number of reasons after death.  For example, a will may be challenged on the basis that it was not executed in accordance with the relevant provisions of the Succession Law Reform Act[1] (the “SLRA”).  Bayford v Boese, 2021 ONCA 442, is an appeal from a 2019 decision of the Ontario Superior Court of Justice (Bayford v Boese, 2019 ONSC 5663) in which the court was asked to consider whether the execution of a will by Bruce Boese (the “Deceased”) met the requirements of subsection 4(1) of the SLRA.[2]  This case reminds us of the importance of a Will being properly executed, how family dynamics can impact estate planning and administration, and of the cost and time associated with estate disputes.

Brenda Bayford (the respondent, “Brenda”), a long-time friend of the Deceased, applied for a Certificate of Appointment of Estate Trustee with respect to a will said to be executed by the Deceased in August 2013 (the “2013 Will”). The Deceased’s brother, Brian Boese (the appellant, “Brian”), filed a notice of objection and an order for directions was subsequently made.  

Two copies of the 2013 Will, dated August 15, 2013 with the word “DRAFT” stamped on every page, were marked as exhibits at trial. One copy only included the signature of the Deceased (“Version 1”), while the other copy included the signature of the Deceased and two witnesses (“Version 2”).  The 2013 Will named Brenda as the sole trustee of the Deceased’s estate.  The 2013 Will provided that the Deceased’s 22-acre farm property in the Arnprior, Ontario area (the “Farm”) which he inherited from his parents was to be transferred to Brenda, who had been helping the Deceased with the day-to-day operations of the farm.  The residue of the Deceased’s estate was to be divided equally between Brian’s two children and the two children of the Deceased’s late sister, Rhonda McTeer (“Rhonda”).