Wills, Estates & Trusts

Siblings at Odds Over Validity of Mother’s New Will

March 25, 2024

Photo of elderly woman signing a new will

Estate planning requires a testator to make significant and important decisions that can impact their loved ones. However, despite careful consideration behind an estate plan, there may still be individuals, including family members, who disagree with certain decisions. This may lead to a will challenge, particularly if someone believes they have not been adequately accounted for in the will.

A recent decision from the Court of Appeal of Alberta illustrates the substantial hurdles that must be met when a party seeks to have a will set aside. This decision also emphasizes the importance of proper estate planning and how a thorough plan can help prevent a will from being deemed invalid.

Mother Prepares New Will Leaving Entire Estate to One Child

In the case of McKay v. Olsen, the deceased was the mother of both the respondent (“RK”) and appellant (“SO”). The deceased had prepared a will in 2012 that divided her estate equally between the parties, however, she prepared a new will in 2015 that left her entire estate to SO alone. At the time of her death, the deceased was 94 years old and the primary asset in her estate was her home.

Following her death, RK demanded formal proof of the will by filing a caveat under the Surrogate Rules. At the hearing, the chambers judge ruled that it was RK’s obligation to show that there were “suspicious circumstances” that required a trial to determine if there was undue influence or issues relating to testamentary capacity. The Court noted that suspicious circumstances might include:

“(a) a medical history of diminished mental capacity;

(b) involvement of a beneficiary in preparation of the will;

(c) significant changes from previous wills; and

(d) where the will makes little testamentary sense.”

Son’s “Total Disinheritance Unexpected”

Upon review of the evidence, the chambers judge noted that the deceased had “mentioned to friends and family as early as 2012 that she intended to leave her house” to SO, giving plausible reasons for this decision. In 2012, when the deceased moved into an assisted living home, SO continued to live in the house. Both parties were aware of the deceased’s intention to leave her home to SO, as well as RK’s intention to challenge the will if she did so. However, RK had “continued interaction with and care of his mother, arguably making his total disinheritance unexpected.”

In regard to the deceased’s new will, it was found that SO and her daughter had “some involvement in the deceased’s attending on her lawyer to prepare the new will, without advising the respondent” and SO had paid the lawyer’s account.

Conflicting Evidence Presented Regarding the Deceased’s Testamentary Capacity

An unsworn letter from the deceased’s long-time physician stated that “it is very unlikely, in my opinion, that she had capacity to make important legal decisions, or understand the consequences of those decisions, in the last 18 months of her life”, and that even if she “may have appeared relatively competent”, had she undergone a formal capacity assessment, “I doubt that the result would have found her to be so”.

On the other hand, evidence from the lawyer who prepared the deceased’s will suggested that the deceased had testamentary capacity at the time she signed the will. Despite initially receiving instructions through SO to make some technical changes to the will, the deceased confirmed that the major change would be made to the beneficiaries.

Chambers Judge Directs Parties to Summary Trial; Decision Appealed by Daughter

Expert evidence from a psychologist was also provided “a retrospective capacity assessment based on a review of the deceased’s medical records and interviews.” However, due to the limited documentation, there was insufficient information to support a determination of lack of capacity as of the date of the will execution.

The chambers judge concluded that the matter was a “close call,” and there were potential issues that could not be resolved without a trial. As such, he directed the parties to a summary trial.

SO appealed this decision on the basis that the chambers judge “relied on inadmissible evidence,” specifically the letter from the deceased’s physician, “and with that letter excluded there is insufficient evidence to demonstrate suspicious circumstances.” Further, SO argued that, when “the evidence is considered as a whole, there is insufficient proof of suspicious circumstances to justify a trial.”

Court of Appeal Finds No Presence of Suspicious Circumstances

On appeal, the Court began its analysis by looking at the question of inadmissible evidence. Finding that one of the doctor’s medical records, which mentioned “mild dementia,” was admitted without giving SO an opportunity to cross-examine the doctor. The Court held that the inclusion of these records played a large role in the ultimate decision of the chambers judge.

The Court then looked at the formal proof required for a will and assessed whether RK had grounds to request such proof. The Court cited a 1995 Supreme Court of Canada decision, which stated that a “duly executed will is presumed to be valid” unless there are suspicious circumstances that warrant setting aside that presumption. In this case, the Court was not satisfied that there were suspicious circumstances present to displace the presumption of validity.

Significant Change Between Wills Supported With Evidence

The Court then turned its attention to undue influence, noting that a “will may be challenged if it is the product of undue influence. Indicia of undue influence may include (i) significant changes from previous wills, and (ii) involvement of a beneficiary in preparation of the will.”

In this case, there was a significant change between the two wills. However, this change was explained by evidence such as the mother’s early stated intention to change her will “undermining the suggestion that she was subject to undue influence in 2015.” Additional evidence showed that SO had “no independent means” while she and her children were living in the deceased’s house, while RK had a secure pension income. RK also admitted that he was not able to give any evidence of SO exercising improper influence over the deceased.

Court Allows Appeal; RK’s Caveat Discharged

Overall, the Court concluded that there was “only weak expert medical evidence that “there were significant threats to her cognition and decisional capacity” that “would have impacted” her capacity at the time the deceased prepared her will.” On the balance of probabilities, it was determined that the deceased was competent at the time she executed the 2015 will.

Accordingly, the Court allowed the appeal, with the order directing formal proof of the will set aside and RK’s caveat discharged.

Calgary Wills and Estate Lawyers at DBB Law Help Clients Prepare Comprehensive Estate Plans

The experienced wills, estates and trusts lawyers at DBB Law work closely with clients to ensure their individual needs and goals are addressed in a comprehensive estate plan. From estate planning to probate and litigation, our firm provides a range of estate planning and administration services to help you navigate the process effectively. We will work with you to ensure that your legacy and succession are secured for your loved ones and, in the event of a dispute, our skilled estate litigation lawyers will take decisive action to preserve your interests and resolve the conflict efficiently.

Located in the heart of downtown Calgary, DBB Law provides pragmatic, modern legal services to clients throughout Alberta. To discuss your estate planning or estate dispute matter with one of our team members, please contact us online or by phone at 403-265-7777.

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