‘Knowledge and approval’ will challenges tough to prove: Smith

September 17, 2019 David M Smith advocatedaily 0 Comments
Estates & Wills & Trusts

‘Knowledge and approval’ will challenges tough to prove: Smith

By AdvocateDaily.com Staff


David M Smith

Litigants face an uphill battle when challenging a will on the basis of the testator’s lack of knowledge and approval, says Toronto estate litigator David M. Smith.

Smith, a partner with Hull & Hull LLP, recently acted for three siblings who disputed a provision in their deceased father’s will that left his house to their brother alone.

The challengers claimed their father did not have knowledge of or approve the contents of his most recent will, which was drafted by a lawyer, because of the way it differed from a previous holograph version the man prepared himself in his native Italian.

However, a judge sided with the brother, finding that “the evidence bends toward the contrary conclusion” that he executed the later will with the requisite knowledge and approval of its contents.

“Knowledge and approval cases are tough to prove because of the way they turn on the drafting lawyer’s evidence,” Smith tells AdvocateDaily.com. “If the judge is satisfied that the lawyer did their job properly in explaining to the testator what the will says and means, then generally you are going to discharge the burden of proving the deceased knew and approved of the will.”

He says lack of knowledge and approval is the least-used of the three main grounds for will challenges in Ontario — the other two being lack of testamentary capacity and undue influence.

“It’s rare to take a run at a will on this basis alone because you’re not trying to argue that the person was incapable, but that they actually signed a will that did not reflect their wishes,” Smith says. “But we thought we had a good case for it here.”

According to Smith, the holograph will that was signed by the father in 2004 was key to the case, and convinced his clients that the testator — whose English was not fluent — could not have meant to leave his home to their brother.

While the Italian holograph will provided the fourth brother with a life interest in the property, it stated that the house should pass to his nine grandchildren at the end of that period.

The later will, signed in 2013 less than three years before his death and prepared with the assistance of a lawyer, stated in English that the house would go to the fourth brother outright if he survived his father. If he did not, then the property was to pass to the children of the fourth brother.

“It’s a fairly subtle difference in terms of drafting, but a big difference in the result,” Smith says.

He argued on behalf of his clients that the holograph will in Italian was a more accurate reflection of the father’s wishes and that he had intended it to be a template for the later version.

“In fact, the lawyer made a different will, and our theory was that he shouldn’t have,” Smith says.

He says the case is also one of a growing number involving wills written by testators without the benefit of legal advice.

“Holograph wills are becoming increasingly common, and they are also often the source of estate litigation,” Smith says.

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