Of all the attacks that may be made against a Will being admitted to probate, the allegation that the Will was made in “suspicious circumstances” and was the product of undue influence is the easiest to make and the hardest to prove. On the one hand, undue influence reflects the law’s general distrust of gifting in suspicious circumstances. In this respect Wilson J. once said that ‘it seems to make sense that the process leading up to the gifting should be subject to judicial scrutiny because there is something so completely repugnant about the judicial enforcement of coerced or fraudulently induced generosity;’ Geffen v. Goodman Estate, [1991] 2 SCR 353, 376. On the other hand, there is a need to stop meritless litigation in its tracks. One pities our jurists who must make a fine examination of the circumstances of the making of a Will in dealing with such allegations.
A recent Alberta case sought to use the lack of evidence that the testator had approved of the contents of the Will as a basis to raise undue influence. Re Loykowski (Estate), 2017 ABQB 175, saw the deceased’s children in a Will contest with the husband of their deceased sister over their mother’s Will. The usual sort of evidence was adduced to show strained relations within the family. The objectors also argued that the Affidavits of Execution did not detail how it was that the testator understood the contents of the Will, but Justice C.M. Jones would have none of it:
48 I am satisfied that the Last Will was duly executed with the requisite formalities, and that it was read, approved and understood by Maria before she signed it, and that Maria had the capacity to do so, even though the affidavit of witness to a will is silent on this point.
49 Beyond this, I am satisfied there is no other credible evidence of suspicious circumstances present in this case. I note the comments of our Court of Appeal in Keller v Luzzi Estate, 2010 ABCA 127, at para 32:
The test for undue influence is not a matter merely of influence, nor is it met by evidence that the testator may have been operating under an inaccurate understanding of some relevant circumstances. The “suspicion” necessary to force a trial on undue influence, putting the entire will into question, requires more than the mere belief by disappointed potential beneficiaries that their repute with a competent testator must have been unfairly kept such that their hoped for specific legacy was not included.
50 Also, the Supreme Court of Canada in Vout v Hay noted that those attacking a will have the burden of adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval of a will or testamentary capacity. In that event, the legal burden reverts to the propounder.
There is little, if any difference, between Alberta and Ontario law on this point. Once again one must rely on the skill of the drafting solicitor in taking complete and accurate notes so that the Court may decide the point properly – while one can’t prevent such attacks completely, the drafting solicitor is in the best position to recognize the danger of litigation erupting and reinforcing the validity of the Will that he or she has drafted.
Have a nice day!
David