If a person is suffering from a delusion when they create a will or codicil, the court may be asked to examine the instrument and the circumstances surrounding its creation to determine whether it is valid. In most cases, delusions are addressed in the context of testamentary capacity, since “[d]elusions will deprive a testator of testamentary capacity where the delusions influence the provisions of a will:” see Estate of Louis Fournier v Lamont, 2024 NBKB 162. More specifically, the Supreme Court of Canada held in O’Neil v. Royal Trust Co., 1946 CanLII 13 that suffering from delusions will invalidate a will if those delusions “brought about the will or constituted an ‘actual and impelling influence’ in the making” of the will.
In addition to having the potential to deprive a testator of testamentary capacity, delusions may also be salient to will challenges based on undue influence. Lamont v. Estate of Louis Fournier et al., 2025 NBCA 79, a new decision of the New Brunswick Court of Appeal, affirms that if a party who benefits under a testamentary instrument exacerbated the testator’s delusions, thereby coercing the testator, that instrument may be deemed invalid on the basis of undue influence. As noted by the court, “[w]hat constitutes coercion depends on the facts of each case.”
The testator in Lamont had a history of mental illness. He was treated by a psychiatrist for 16 years and had been diagnosed as a hypochondriac. Beginning in 2013 until his death in 2021, the testator believed that he was being harmed by electronic harassment and targeted with electromagnetic waves by an unknown organization.
In 2014, the testator met the appellant, who had founded the West Coast Society for All Victims of Organized Stalking, an online community devoted to supporting individuals who identified as targeted individuals and victims of electronic harassment. At that time, the appellant presented herself as a registered crisis counsellor, though she was not licensed or registered with any professional body. A few years later, in 2017, the testator and the appellant began to communicate almost daily via email and on the telephone. Initially, the testator told his family doctor and others that the appellant was his new therapist.
The testator and the appellant eventually became romantically involved, even though they never met in person, and got engaged in 2019. A few months later, the testator wrote a new codicil which revoked his prior testamentary instruments and left his entire estate, worth more than $650,000, to the appellant. Around the time that the testator wrote the new codicil, the appellant told him that individuals across the country who were being targeted by electronic harassment “were under attack and were finalizing their wills,” and that some were “dying or taking their own lives.”
There was no doubt in this case that the testator’s beliefs about electronic harassment were delusional. In the context of estate litigation, delusions have been described as “a belief on any subject which no rational person could hold, and which cannot be eradicated from his mind by reasoning with him” (see Whitford v Baird, 2015 NSCA 98); more recently, delusions have been linked to mental health conditions that may interfere with a testator’s decision-making process (see Devlin Estate (Re),2022 NSCA 33). On the record before her, the applications judge found that there was simply no objectively reliable evidence to support the notion that the testator was a victim of electronic harassment.
In concluding that the testator had been subject to undue influence by the appellant, the applications judge made a number of findings, including:
- The appellant maintained a position of control and authority throughout the relationship, which began as therapy.
- When they began speaking on the phone, the testator was harbouring delusions about the cause of his physical ailments, and was vulnerable.
- The appellant fuelled his delusions regarding electronic harassment to the point that his entire life centred around it. He even bought a $3,000 magnet-covered helmet to protect himself from the effects of electronic harassment.
- The appellant isolated the testator from family and friends by telling him that those around him could become targets of electronic harassment simply by being in his presence.
- The testator gave the appellant approximately $50,000 between 2017 and 2021 because of her financial difficulties.
- The appellant’s statements about individuals who were being targeted by electronic harassment finalizing their wills induced the testator to prepare the codicil, given his delusional state.
In appealing from the judge’s decision that the codicil was a product of undue influence, the appellant argued that the judge had placed unreasonable blame on her for the testator’s beliefs regarding electronic harassment, that the judge erred in determining that the testator suffered from an “insane delusion,” and that her undue influence analysis was also erroneous.
The New Brunswick Court of Appeal dismissed the appeal. While it was clear that the testator was already harbouring delusions about electronic harassment before he met the appellant, the evidence established that the appellant had reinforced and exacerbated those delusions in a number of ways, which led the testator to leave his estate to her. For example:
- the appellant told the testator that the physical symptoms he suffered were manifestations of electronic harassment;
- the appellant encouraged isolation by advising the testator that his friends and family were at risk of being exposed to electronic harassment if they were in his presence; and
- the appellant told the testator that doctors could not assist with electronic harassment.
Accordingly, the Court of Appeal confirmed that the codicil was a product of undue influence, and was invalid. The will in this case was also invalid because the appellant failed to establish that the testator had testamentary capacity.
The Court of Appeal’s decision in Lamont is noteworthy in confirming that taking advantage of a testator’s delusional state may give rise to undue influence, and that delusions may invalidate a will on grounds other than lack of testamentary capacity.
Thank you for reading, and have a great day!
Ian.