In Zerbinati v. Zerbinati 2013 CanLII 86428 (ON SC), the respondents to an application for the determination of the validity of the last will and testament of Valentino Mario Zerbinati (“Valentino”) brought a motion for “non-suit” on the grounds that the formal validity of Valentino’s Will had not been established.
The applicants were the testator’s son, Valentino Jr. (“Tino”), and Valentino’s grandson, both of whom stood to inherit the residue of Valentino’s estate. The respondents/moving parties were Valentino’s three brothers, Dante, Mario, and Peter Zerbinati (“Zerbinati Brothers”).
The Zerbinati Brothers challenged the Will on the grounds that Valentino did not make or acknowledge his signature in the presence of the two attesting witnesses as required pursuant to sections 3 and 4 of the Succession Law Reform Act).
The circumstances in which the Will was made and signed were somewhat unorthodox. On Saturday, August 2, 2008, John Robert Remus (“John”), who was not a lawyer, prepared Wills for Valentino and his wife, Maria, to sign. John prepared the Wills on Valentino’s home computer, and then took the Wills into the kitchen where Valentino, Maria, and John’s wife, Barbara, were sitting. John read the Wills to Valentino and Maria, and then provided the Wills to them for their signature. Maria signed her Will, and then John and Barbara signed as attesting witnesses.
John and Barbara intended to sign as attesting witnesses to Valentino’s Will, too, but Ken Biniaris (“Ken“), who was a friend of the Zerbinati family’s, happened to stop by for a visit just before they did so. At John’s request, Ken agreed to act as one of the witnesses, and signed as the first witness. John then signed as the second witness. Ken left, and Valentino later poured a round of some homemade brandy. (The judge noted that his gesture “might have been to mark the execution of the wills or it might equally have been to mark the wedding of his son, Tino, which was taking place on the same day.” A big day indeed.)
However, Ken testified that he did not actually see Valentino sign the Will. Rather, he thought that Valentino had already signed the Will, or that he was in the process of signing when he walked into the kitchen.
The judge accepted that Ken had seen Valentino sign something, “perhaps an initial”. The judge found that, on the balance of probabilities, the requirements as to the formal validity of the Will had been satisfied and that Valentino had made his signature in the presence of both Ken and Barbara, as witnesses. In the alternative, he also found that the evidence supported a finding that Valentino acknowledged his signature on the Will to Ken.
Accordingly, the judge dismissed the Zerbinati Brothers’ non-suit motion. However, the decision is silent as to costs. And, as to whether Tino invited his uncles to his wedding on that momentous day of August 2, 2008? The decision is silent on this point as well (but if he did invite them, I hope they at least gave him a very generous gift…)
