The High Hurdle of Undue Influence

February 8, 2013 Hull & Hull LLP Estate & Trust Tags: , , 0 Comments

In Zahn v. Taubner (80 E.T.R. (3d) 53), released in August 2012, the Alberta Court of Queen’s Bench considered  a will challenge.  Kay Ford ("the Deceased") died in 2000.  She never had any children, biological or adopted. She was survived by three brothers.  The Deceased was married to a gentleman named Henry Ford who died in 1972.  He had three children from a prior marriage.  After his death, the Deceased entered into a common-law relationship with Otto Zahn in the mid 1970s.  Mr. Zahn, like Mr. Ford, had three children from a prior marriage. The Deceased separated from Otto Zahn in 1997. 

The Deceased, prior to Zahn’s death, had relocated to the basement of her parents home.  A year after Zahn’s death, the Deceased was diagnosed with terminal lung cancer.  She was cared for by a woman named Nadia, one of two part time caregivers who had been helping look after the Deceased’s parents.   The Deceased’s condition deteriorated such that in March, 2000 she was admitted to hospital where she died on May 25, 2000.

The Deceased executed three wills on the following dates: September 27, 1985 ("the 1985 Will"), April 4, 2000 ("the April 2000 Will") and May 5, 2000 ("the May 2000 Will").  The 1985 Will named the Zahn children as the Deceased’s residuary beneficiaries.  The Wills made in 2000 both named one of the Deceased’s brothers as executor and named the Deceased’s three brothers as residuary beneficiaries.

The Zahn children challenged the validity of the 2000 Wills on the usual grounds of lack of testamentary capacity, lack of knowledge and approval and procurement by undue influence.  The Court found that there existed suspicious circumstances: 

  • The lawyer who met with the deceased and attended on the execution of the 2000 Wills was a lifelong friend of at least one of her brothers;
  • The lawyer was contacted by the brothers on repeated occasions throughout the will drafting process;
  • The brothers, in a dramatic reversal of the Deceased’s long-time testamentary intentions, became her residuary beneficiaries under the 2000 Wills;
  • The Deceased was referred to by multiple witnesses as an alcoholic and was observed by the witnesses as being intoxicated while in palliative care; 
  • When the Deceased was initially admitted to palliative care in hospital, never to return home, she was suffering from severe delirium and pshycological distress suspected to have been "related to opioid toxicity and liberal use of the drug Ativan, possibly aggravated by alcohol withdrawal"; 
  • On March 21 and 28, 2000, a mere week before the April 2000 Will was executed, the Deceased scored 8/30 on a Mini- Mental Status Exam (MMSE).  On April 10, 2000, some six days after the execution of the April 2000 Will, her score was 25/30, greatly improved to be sure yet still illustrative of some degree of impairment.

The Court considered the foregoing evidence in concluding that there existed suspicious circumstances.  However, the Court concluded that the Wills made in 2000 were valid: testamentary capacity and knowledge and approval were proved by the Deceased’s brothers.  The Court further concluded that the Zahn children failed to prove undue influence.  In the Court’s eyes, the Deceased’s caregiver Nadia, who had become her close confidant, was the star witness:

"…in my view, it is significant that at no time did Ford ever specifically indicate to Nadia, who had become her confidant, that she had or was being unduly influenced or pressured by [any of the Deceased’s brothers] with respect to how they were to be treated in a new Will.  While one can never predict with certainty how an individual will behave in certain circumstances, it is my view that this likely would have occurred if there was undue pressure, given the nature of the relationship between [the Deceased] and Nadia."


David M. Smith

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