A Question of Fact: Will Challenges and Mistaken Belief

April 18, 2019 Garrett Horrocks Capacity, Estate & Trust, Estate Litigation, General Interest, Litigation Tags: , 0 Comments

A recent decision of the Ontario Superior Court of Justice considered an interesting question of fact and law.  Will challenges in Ontario are ordinarily grounded on the basis that a testator lacked testamentary capacity, did not know and approve of the contents, or that the Will was procured by undue influence.  In Cavanagh et al v Sutherland et al, however, the applicant sought to challenge the validity of her mother’s will on novel grounds; namely, that it was procured as a result of a mistake of fact.

The testator died in July 2016, leaving a Will benefiting 5 of her 6 daughters.  The Will expressly excluded her sixth daughter, Carolynn, from sharing in the Estate.  Carolynn objected to the issuance of a certificate of appointment on the basis that her mother lacked capacity or that the Will was procured by undue influence.

The estate trustees brought a motion for summary judgment seeking an order dismissing Carolynn’s objection and a declaration that the Will was their mother’s valid Last Will and Testament.  At the hearing of the motion, Carolynn changed her position and chose instead to focus primarily on her belief that her mother had been operating on a set of mistaken facts.

Carolynn referred to a payment of $65,000 made to her by her parents in or about 2011, prior to the execution of an earlier will that also excluded Carolynn.  She took the position that this payment was made in satisfaction of a loan to her father years earlier that her mother knew nothing about.  Carolynn argued that her mother likely believed this payment was a gift to Carolynn in lieu of her inheritance and, accordingly, left her no benefit under the Will.

The court found that the evidence held otherwise.  Notably, the evidence showed that the payment was not made in satisfaction of a loan, but rather as a result of a demand by Carolynn.  In 1996, her parents had agreed to place her on title to a property to assist them in obtaining a mortgage.  The mortgage was subsequently paid off in 2011, at which point Carolynn’s parents asked that she transfer her interest in the property back to them.

The evidence showed that Carolynn refused, instead asserting that there was always an intention that she remain on title to the property as legal owner.  Carolynn’s parents ultimately offered to buy out her interest in the property in exchange for a payment of $65,000.  Her mother later advised the lawyer who prepared the Will that this was to constitute Carolynn’s inheritance.  It was clear to the court that the testator had considered this payment when the Will was drafted.

In the end, the evidence was such the court did not have to consider the effect of a true mistake of fact on the validity of a Will.  However, the question of a mistake of fact would ordinarily tie into knowledge and approval and, specifically, whether the mistake was sufficient to negate the validity of the Will.  In this case, it was apparent that the testator had turned her mind to the payment to Carolynn, and there was no question of a lack of knowledge and approval.

Thanks for reading.

Garrett Horrocks

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