Surrogate Will Signing Or How Does Someone Who Is Paralyzed Sign A Will – Part 1

Date: 20 Feb, 2023| Author: Fred Streiman

Part 1

The Succession Law Reform Act, section 4 (1) (a) sets out one of the basic requirements of a valid Will, specifically  “…a Will is not valid unless it is signed by the testator or by some other person in his or her presence and by his or her direction;”.

Testator is the formal name of the person making a will.

It is not unusual for our office to be asked near the end of someone’s life to prepare a will for them while they still have the mental capacity to make a Will, but they have lost the use of their hands. Numerous neurological and muscular diseases can render one physically incapable of signing their name or even making a mark yet still leaving them with the mental capacity to instruct and meet one of the tests for a valid Will. In this author’s practice, this scenario has arisen more frequently than one would have thought.

This situation has rarely been reviewed by the courts and on a single occasion in Ontario. In the 2011 Ontario Superior Court decision in The Estate of Clark Ross Meyer, the Honorable Mr. Justice Alexander Sosna, within three years of becoming a judge, had to rule upon a near soap opera like fact situation.

The former common law spouse of the late Clark Meyer had been promised repeatedly that a house owned by her former paramour would be transferred into her name. The relationship only lasted a few years and then Mr. Meyer moved on, subsequently marrying the woman that became his widow, Mrs. Sylvia Meyer.  The former girlfriend was trying to “probate” the contested will signed by Mr. Meyer.

Clark Meyer not only promised a house to his former girlfriend, but he even entered into a rental amending agreement in which he again made the same promise.

The former girlfriend was strung along literally for years by promises and excuses from Mr. Clark Meyer. Mr. Meyer contracted AIDS and was soon close to leaving this earth. At his request arrangements were made for a lawyer to attend at the bedside of Mr. Meyer where he was to sign a Will in which he left to his former girlfriend the house that he had promised numerous times.  He completed a will questionnaire at the lawyer’s request.

Mr. Meyer was too ill to physically sign the Will and it was signed on his behalf, and supposedly at his direction by a neighbour of Clark Meyer acting as his surrogate.

The case is almost voyeuristic in its description of the life of the late Clark Meyer.  As is not uncommon in the law, bad facts make for bad law.

There is no specific or magic wording to place at the end of a Will when it is signed by one’s surrogate. However in Meyer v. Meyer, Justice Alexander Sosna emphasizes the importance of formalizing by way of an Affidavit by the surrogate and by any other means possible that all of the factors called for in The Succession Law Reform Act are met.   How was the direction given by the testator to the neighbour to sign on his behalf? What evidence is there that that direction was communicated, in other words how did the neighbour know that the testator wanted the Will signed? How did the surrogate and indeed all of the parties involved, including the lawyer that drafted the Will know that the testator met the legal and mental test for a valid Will? What evidence was there that the testator understood what he was doing and the meaning of the effect of the document?  Did the testator have the requisite mental capacity to make a Will at that time?

The facts are complicated and morally difficult.  They revolve not only around the issue of the adequacy of surrogate signing, but also on the enforceability of the written promise to transfer the house to the former girlfriend.

Justice Sosna had to play the tough guy.  He felt that Clark Meyer’s mental and physical capacity had deteriorated to such a degree by the time the Will was signed by the surrogate, that Clark lacked the appropriate mental capacity. Justice Sosna also criticized the almost total lack of any evidence that the testator Mr. Clark Meyer knew in the fullest sense what he was doing and what he was supposedly directing the surrogate to sign.

I tip my hat to the drafting lawyer for coming up with a scheme to supposedly give direction and instruction from the testator to one of the witnesses to the Will. The lawyer instructed Mr. Myers’s mother, who was also present at the will signing to hold Mr. Myers’s hand.  The lawyer told Mr. Meyer to squeeze his mother’s hand if he approved of each provision in the Will as the lawyer read those terms out.  However, for some reason the former girlfriend failed to call the testator’s mother to give any evidence and there was no evidence from her that she actually established any means of communication with her son. Further, the lawyer, the former girlfriend and indeed the wife, all of whom were present at this bizarre death bed scene, gave no evidence on the point of whether or not the mother’s hand was even being squeezed by Mr. Meyer.

It is for another day and another fact situation to determine whether or not the hand squeezing process would have been sufficient.