I frequently speak
with potential will challengers, usually someone who has been omitted from the
will, or received much less than other beneficiaries of the same relation to
the deceased, like their siblings. Many of the arguments I hear are similar to what
Justice Corthorn canvassed in Graham:
“[20] ‘I have challenged the validity of my
sister[’]s Last Will and Testament because she did not leave me
anything and she left the majority of her estate to a relative
stranger.’ […]”
It’s crucial to
understand that this kind of allegation, without supporting evidence, is
usually not enough to sustain a will challenge.
In this case, the Will
challenger, Patricia, argued the three most common grounds for invalidating a
last will: “(a) lack of testamentary capacity; (b)
undue influence; and (c) suspicious circumstances.”
The Court considered the evidence that Patricia had presented for her claims, and decided to dismiss the Will Challenge application in its entirety.
Why did the Court take
such a step, early in the proceeding, rather than allowing the proceeding to
run its course, to a possible trial?
Before the Court will
subject an estate to the time and expense of defending a Will Challenge, the
person challenging the Will may need to demonstrate that they have evidence, at
the threshold level, that the document is not valid.
Many litigants who try
to challenge a will face an immediate problem: they want to claim that the
deceased lacked capacity, or was being unduly influenced, or controlled, by
someone else, in the process of making the will, but they don’t have access to
the medical records, financial records, or lawyer’s file, to prove their case.
They instead need an order from a judge, as the third parties with the records
would not otherwise be able to disclose them.
The ruling in Graham demonstrates
the importance of having an arguable case even without such records, with the
best and most comprehensive evidence available, at the very first stage of a
will challenge proceeding.
This preliminary
hurdle sets estate litigation proceedings apart from other types of court
cases. Graham cites the now widely followed decision in Seepa v Seepa 2017 ONSC 5368]:
“the issue is not whether the applicant has proven his or her case but
whether he or she ought to be given tools, such as documentary discovery, that
are ordinarily available to a litigant before he or she is subjected to a
requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts
that support a cause of action to become entitled to use the full panoply of
fact-finding tools provided by the Rules.
In estates cases, more is required.”
A person wishing to
bring a will challenge must be prepared for their claims to face the Court’s scrutiny, even at an early stage of the proceeding. The Court
in Graham, for example, considered the difference between a relationship that was
very close between the deceased and a beneficiary under the Will, and one where
influence was being exerted on the Deceased:
“[75] Patricia’s evidence regarding the history of the relationship bet[ween
Katherine and Sheila, and as to Sheila’s alleged positive view of Katherine as
a person, even if accepted, is not sufficient to call into question the
validity of the Will on the ground that Sheila was unduly influenced by
Katherine.
[…]
[78] For example, the first factor is the testator’s
dependence on the alleged influencer for emotional and physical needs. At
para. 6 of the 2022 affidavit, Patricia describes Sheila as “a loner and
reclusive who only left her house when necessary.” At para. 9 of the 2022
affidavit, Patricia describes the extent of Katherine’s involvement in Sheila’s
life as helping Sheila out now and then with the garden of her home, painting
rental suites owned by Sheila, and spending time with Sheila on her birthday.”
The Court in Graham also considered
what threshold a Will Challenge must meet on evidence of a lack of mental
capacity to make a will. The decision demonstrates the importance of not only
calling a deceased person’s mental capacity into question, but adding some
external evidence that the Deceased person may not have been able to understand
the Last Will making process:
[53] In her
2023 affidavit, Patricia expresses the view that Sheila’s behaviour in early
2019 is evidence that Sheila was in a “strange and emotional state” and
behaving in a manner that was “rather out of character” for the Sheila whom
Patricia knew.
[54] […]
Patricia did not provide any anecdotal evidence about Sheila’s condition in the
final 2.5 years of Sheila’s life (i.e., from February 2019 to October
2021). Patricia’s evidence is that, with
one exception, she did not speak with her sister again after the February 2019
telephone conversation described in para. 52, above. […]
[57] On
cross-examination, Patricia also testified about her belief that Sheila fits
the criteria for an individual suffering from “schizoid personality
disorder”. Patricia’s belief in that
regard is based on the difficulties Patricia thinks Sheila had, throughout her
life, maintaining friendships.
[…]
[59] I contrast Patricia’s unsubstantiated speculation with the
detailed narrative provided by Katherine in the Blais affidavit – a narrative
that withstood the test of, and was unshaken on, cross-examination.
It is important in a Will Challenge
proceeding to be familiar with the evidence that is required to show that a
person making a Last Will lacked testamentary capacity, or that they were
unduly influenced by someone in the process. Sometimes, details that a will
challenger will consider extremely important, like being excluded from a Last
Will, when he or she had a loving relationship a parent, will not move the
Courts very much. Sometimes other details, that may have been overlooked, take
on great significance.
Whether you are challenging a last will, or defending the validity of a last will, the outcome of Graham v. McNally Estate and Blais should serve as a reminder of the importance of making a focused and organized argument at the very outset of your case.
Setting aside a
Last Will requires intense scrutiny of the facts, and rounding up evidence from
many sources. Make sure you work with a lawyer who is up to the challenge!
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