The recent passings of Oscar-winning actor Gene Hackman and his wife Betsy Arakawa have brought significant attention to a number of complexities that exist in wills and estates law. One such issue is the possibility of a will challenge by Hackman’s three children, who are reportedly not named as beneficiaries in his Will to inherit his estimated $80 million Estate.

As we have blogged in the past (see for example Suzana Popovic-Montag’s article on will challenges here), in Ontario and elsewhere, there are several legal grounds on which a will can be contested. One potential ground is undue influence, wherein a testator’s free will is improperly overridden by another when drafting their will. Another is lack of testamentary capacity, where the testator lacks the necessary mental capacity to understand the nature and extent of their estate and the implications of their decisions when the will is executed. Improper execution is another possible ground, which requires evidence that the will was not signed or witnessed according to the applicable legal requirements.

The Hackman case highlights some of the challenges that come with contesting wills that were written long before the testator’s death. While contesting a will can be challenging regardless of its age, there are certain factors that can make contesting a will signed shortly before the testator’s death comparatively easier. For example, in Sweetnam v. Williamson Estate, 2017 ONCA 991, the Ontario Court of Appeal upheld the trial judge’s decision that the testator lacked testamentary capacity when he made his wills shortly before his death. The Court concluded that the testator’s brain cancer diagnosis and short-term memory loss affected his ability to understand the value of his estate and the contents of the wills, raising doubt as to his capacity.

In the Hackmans’ case, their Wills were executed 20 years before their deaths, in 2005. While it is reported that Hackman had Alzheimer’s disease in his final years, the execution of his Will is purported to have been long before his health declined, which would likely make any will challenge on the basis of testamentary capacity more difficult. The passage of time between the Wills’ execution and the Hackmans’ deaths would also likely make evidence collection more onerous, adding additional hurdles to proving other grounds for a will challenge, such as undue influence.

In short, Hackman’s children would likely face significant challenges if they decide to contest his will. However, the beneficiaries of Hackman’s Living Trust have not yet been revealed publicly, and it may very well be that his children would inherit through the Trust, instead. Both Hackman and Arakawa had pour-over clauses in their Wills directing their Estates into the Living Trust (for a more detailed examination of pour-over clauses, see Stuart Clark’s 2021 blog on this topic).  Depending on who are named as the Trust’s beneficiaries, then the children may not view a will challenge as necessary.