In the recent case of Graham v. McNally Estate and Blais, 2024 ONSC 4006 the Ontario Superior Court of Justice found that claims regarding testamentary capacity, undue influence, and suspicious circumstances had failed to meet the minimum evidentiary threshold.

In this case, the deceased, Sheila, was survived by her sister, Patricia, and her long-time friend of more than 14 years, Katherine. While Sheila and Patricia spoke weekly by phone between September of 2011 and February of 2019, they only spoke once between February of 2019 and October of 2021, and had not seen each other since September of 2011. In contrast, Sheila and Katherine and Katherine’s husband Claude had been close friends since 2007.

Sheila died in October of 2021, with a will that was executed in November of 2020 in which she named Katherine and Claude, her estate trustee and alternate estate trustee respectively. Sheila made Patricia’s daughter the income beneficiary of a trust fund which comprised of 40% of the residue of her estate, and named Katherine and Claude as the beneficiaries of the residue of her estate. Patricia was not included in the will, and she challenged the validity of the will.

In her affidavit, Patricia said “I have challenged the validity of my sister[’]s Last Will and Testament because she did not leave me anything and she left the majority of her estate to a relative stranger who had taken her to see at least two different lawyers to draft a Will.  The circumstances surrounding the preparation of the will are suspicious.”

In support of her claim for lack of testamentary capacity, Patricia stated that Sheila had suffered from mental illness for most of her life and that she had noticed signs of confusion in Sheila and a difficulty calculating numbers from 2007 onwards, however the Court noted that Patricia had not placed any objective evidence before it which satisfied the minimal evidentiary threshold. The Court specifically noted that Patricia had failed to address Sheila’s mental and emotional state from February 2019 until her death, which consisted of 2 and a half years and was the period in which the will was executed.

In support of her claim of undue influence, Patricia claimed that Katherine had told Sheila that she was a “Bessette” and related to the family of Saint Brother Andre Bessette, to whom Sheila had been devoted her whole life, and that this gave Katherine control over Sheila. However, the Court again noted that Patricia had failed to adduce objective evidence showing that Katherine had attempted to influence Sheila in any way regarding the will, and noted that Patricia’s evidence did not support the claim that Sheila was emotionally or physically dependent on Katherine.

Patricia did not expand on her claim of suspicious circumstances, and the Court noted that there was no evidence pointing to the will being executed without the requisite formalities or which raised questions regarding the circumstances of its creation. Katherine claimed that she had not assisted Sheila in selecting a lawyer, or attending at the lawyer’s office, and the Court once again noted that there was no evidence which could have called into question the validity of the Will on the ground of suspicious circumstances.

The Court noted that “While the evidentiary threshold on an application of the kind brought by Patricia is low, the evidence supporting the validity of an objection must be more than the suspicion of the objector.  The vast majority of Patricia’s evidence is nothing more than suspicion or speculation on her part.”

As a result, after reviewing both parties’ evidence, the Court found that Patricia had failed to adduce, or point to, any evidence which, if accepted, would have called into question the validity of Sheila’s will, and Patricia’s application was dismissed.