The Doctrine of Righteousness and Its Place in Estate Litigation

May 13, 2021 Kira Domratchev Estate Litigation, Litigation Tags: , , , , , , 0 Comments

The doctrine of righteousness is a historical concept that is interesting to consider in the context of estate litigation.

Apparently, it was first developed in the 1800s to protect will-makers from consequences of the actions of those attempting to gain a benefit from another’s Will, specifically through the exercise of undue influence.

The case law on this particular concept is quite sparse.

This doctrine was considered by the Supreme Court of Canada (“SCC”) in Riach v Ferris, [1934] SCR 725 where the case of Barry v Butlin was reviewed. It was mentioned in passing by the British Columbia Supreme Court in Halliday v Halliday Estate, 2019 BCSC 554, without any significant commentary as to its effect or place in a Will challenge.

A more in-depth analysis of this doctrine, however, was provided by the Saskatchewan Court of Appeal (“SKCA”) in the decision of Karpinski v Zookewich Estate, 2018 SKCA 56.

The SKCA held that this doctrine may apply where a person, who is “instrumental” in the drafting of the will, also receives a benefit from the will greater than the other beneficiaries. In that case, there may be a requirement for such a recipient to prove the “righteousness” of the transaction.

The SKCA further noted that the SCC also stated that these rules of law apply to all circumstances that raise the “suspicion” of the Court and not only where a person who is instrumental in the drafting of the Will receives a superior benefit. According to the SKCA, this may suggest that this doctrine is only an example of the Court finding a certain kind of relationship to be a suspicious circumstance such that the burden of proof shifts to the propounder of the Will.

The SKCA’s comments are in contrast to John Poyser’s position set out in his book entitled “Capacity and Undue Influence” where he relays his views that the doctrine of righteousness is its own unique doctrine and ought not to be confused with the concept of suspicious circumstances.

Thanks for reading!

Kira Domratchev

Find this blogs interesting? Please consider these other related posts:

Court of Appeal Reiterates the Test for Undue Influence

Proving a Will Executed Under Suspicious Circumstances

A Question of Fact: Will Challenges and Mistaken Belief

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