Tag: Capacity and Undue Influence
Earlier this year, the Court of Queen’s Bench of Alberta directed that a party challenging a will may be able to obtain orders for disclosure before the Court determines whether the will must be proven in solemn form.
This case may be of interest in Ontario because the procedure for commencing a will challenge in Alberta and Ontario is relatively similar. If a party in either province wishes to challenge a will, that party must establish an evidentiary basis for doing so before a hearing will be ordered. In Ontario, the requirement to provide a “minimal evidentiary threshold” before a will must be proven in solemn form was reiterated by the Court of Appeal in Neuberger v. York, 2016 ONCA 191 (CanLII). The standard is worded differently in Alberta, where applicants must provide an evidentiary foundation to confirm that there is a “genuine issue to be tried” before the hearing of a will challenge will be ordered: see Quaintance v Quaintance (Estate), 2006 ABCA 47 (CanLII) and Logan Estate (Re), 2021 ABCA 6 (CanLII).
Evidence a party challenging a will in Alberta may obtain before a hearing is ordered:
In Gow Estate (Re), 2021 ABQB 305 (CanLII), the will dispute was between four of the deceased’s children. Two siblings were serving as the personal representatives of the estate, and two other siblings applied to challenge the deceased’s will on several bases, including undue influence. The personal representatives opposed the applicants’ request that the will be proven in solemn form.
The applicants also applied to the court for interim relief – an order that would permit them to question the personal representatives and obtain documentary disclosure, including the estate solicitors’ files, the deceased’s medical records and driver’s licence documents, previous wills, and other estate planning records, before the “threshold” application was heard. The personal representatives objected to the interim relief sought by the applicants on the basis that Alberta’s Surrogate Rules did not permit pre-application discovery and also argued that the testator’s privacy was to be respected unless the applicants proved that formal proof of the will was warranted in the circumstances.
Before the interim application was heard, the personal representatives also provided the applicant siblings with partial disclosure relating to the testator’s health, testamentary capacity and intentions, and estate planning, and also examined one of the applicant siblings in anticipation of the threshold application.
The interim application was heard by Justice Feth, who permitted both questioning and limited documentary disclosure, recognizing “the importance of early disclosure in surrogate disputes”. With respect to questioning, the Court confirmed that the personal representatives could be questioned “about their personal interactions with the testator during his lifetime, including their observations of his mental capacity and their involvement in his testamentary decision-making.” Justice Feth explained:
 Access to pre-application questioning advances procedural fairness since the Applicants are obligated to meet an evidentiary burden and obtain corroboration through material evidence from other sources. In meeting their onus, measured litigation procedures should not be foreclosed to them.
 Immunizing an adverse party from questioning is especially concerning when undue influence is raised. The living witness who is likely the most knowledgeable about the interactions with the testator would be hidden from the Court.
Justice Feth also observed that it would not be fair to permit the threshold application to be heard by the Court with only partial disclosure selected entirely by the personal representatives because of the potential for “a misleading presentation of the facts”.
Limited documentary disclosure of some of the deceased’s medical records and previous wills was also ordered in light of the partial disclosure already provided by the personal representatives. While Justice Feth acknowledged that individuals may have a significant privacy interest in their medical records, it was also recognized that such a privacy interest is not absolute and ordered the personal representatives to provide the applicant siblings with disclosure for the period during which the deceased’s testamentary capacity was in question.
Justice Feth acknowledged the potential for “[c]oncerns about fishing expeditions, the testator’s privacy interests, and excessive delay and expense occasioned by exuberant demands for disclosure” during the early stages of estate litigation, but held that those concerns could be managed by the Court rather than prohibiting early disclosure in surrogate proceedings.
Evidence a party challenging a will in Ontario may obtain before a hearing is ordered:
In comparison to Justice Feth’s decision, Ontario courts have in some recent instances been reluctant to provide documentary disclosure in will challenges during the preliminary stages of the litigation. In Seepa v Seepa, 2017 ONSC 5368 (CanLII), Justice Myers held that documentary disclosure should not occur until after a threshold will application has been granted. Recently, in McCormick v McCormick, 2021 ONSC 5177 (CanLII), Justice Wilcox described Justice Myers’ decision as follows:
 In Seepa, Meyers J. expanded on the policy considerations behind the minimum evidentiary threshold requirement. It was to protect from lengthy, intrusive, expensive documentary collection and investigation proceedings untailored to the needs of the individual case and from intrusion into a deceased’s privileged legal files and personal medical records. In the face of these, a litigant was not to be given tools such as documentary discovery that are otherwise ordinarily available to a civil litigant before the litigant has produced some evidentiary basis to proceed.
In keeping with the Court’s decision in Seepa, in Young v Prychitko, 2021 ONSC 3150 (CanLII), Justice George declined to order documentary disclosure in the context of a will challenge, holding that the Court would not entertain a fishing expedition and compel production of documents before the minimal evidentiary threshold had been met. The firm’s blog post about the Court’s decision in Young v Prychitko can be accessed here.
While document disclosure prior to a threshold application may have recently been discouraged, some Ontario decisions have instead permitted cross-examination on affidavit evidence as a next step, as noted in Justice Wilcox’s decision in McCormick. The Court even noted in Young v Prychitko that the parties would be able to cross-examine each other on their affidavit evidence before the threshold issue, in that case, was decided.
Having said that, the practice of permitting parties to cross-examine each other on affidavit evidence before documentary disclosure may not always be optimal. In Shapiro v Shapiro, 2021 ONSC 4501 (CanLII), for example, Justice Hurley noted that cross-examination on an affidavit before documentary discovery in that particular case was “unlikely to accomplish anything of real benefit” and likely “would only add to the legal costs and beget delay” – the very danger that Justice Myers indicated the minimum evidentiary threshold requirement was intended to avoid. The will threshold application was determined in Shapiro without any cross-examination.
In light of these recent decisions by Ontario and Alberta Courts in which we have seen two conflicting approaches in the disclosure of medical records and other documentary disclosure, the minimal evidentiary threshold issue should remain top of mind to lawyers assisting clients with the early steps of a will challenge.
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For further reading on threshold will challenges and the evidentiary burden, check out these other blog posts:
When parents are creating their Last Will and Testament, they often direct that assets are to be divided amongst their children. However, this is not always how it works, as the testator has the right to leave their estate to whomever they want unless they have dependents who must be financially taken care of.
Indeed, some very rich celebrities – Sting, Elton John, Mark Zuckerberg, Warren Buffet and others – reportedly have said that their children will not receive the bulk of their estates. Their reasons include giving them “some semblance of normality, some respect for money, some respect for work” and “huge sums of wealth … distorts anything they might do in creating their own path.”
You may not have multimillionaires as parents, but there is the chance that when they die, you will not be named as a beneficiary in the will. If that happens and you feel you are entitled to some portion of the estate, a legal challenge to the will can be mounted. But beware – the process will be difficult and the chances of success uncertain.
The first thing to keep in mind is that only a spouse or dependent children can contest a will that has disinherited them. You have to have a financial interest in the estate and must be able to show you were named in a prior will, or that the deceased had promised to take care of you after their passing.
If probate has not already been granted, you can file a Notice of Objection with the court registrar. If probate has been granted, then you have to bring a motion for the return of the certificate of appointment.
Before doing that, it is wise to discuss with legal counsel why you are objecting to the will. If your reasons are based on emotion rather than reason, you will likely be advised to walk away and accept the situation. The court has little tolerance for notices of objections based on frivolous claims, and you may end up having to pay the legal costs the estate incurred in defending against your claim.
You also have to consider if contesting the will makes financial sense. Does the potential gain outweigh the legal costs (not to mention the time, effort and emotional stress) the process may cause?
That being said, there are valid reasons for taking legal action. The two main ones are that there was a lack of testamentary capacity when the final Will and Testament was drawn up, or that the testator was subject to undue influence by someone. Other valid reasons for mounting these challenges include:
- the will is unsigned or not properly witnessed
- the testator was not aware of the full contents of their estate
- there are ambiguous terms in the will that are open to interpretation
- simple fraud is alleged
Any of these reasons are grounds for filing a Notice of Objection. If successful, the will may be declared invalid.
Cases that come before the court include instances where a person near the end of their life leaves their estate to a much younger person who was their caregiver or romantic partner. Family members who find themselves cut out of the inheritance have to prove that the new beneficiary exerted undue influence in the writing of the will.
That is difficult, as mental capacity is a fluid concept. A person may have the capacity to enter into a marriage, but be incapable of effectively managing their own financial affairs. As the population ages, with many people holding onto sizeable financial portfolios, we will likely see more of these predatory marriages in the future.
Challenging a will in court can be a costly, time-consuming and emotionally draining experience. Litigation can pit family members against each other, straining relationships in a time when they should be mourning. Even if they win, beneficiaries may have to wait for years as the legal process unfolds.
If you feel you have been unfairly denied an inheritance, you should speak to a wills and estates lawyer. While every case is fact-dependent, they can provide you with an informed opinion about your chances of success.
Thanks for reading, and have a great day.
When a deceased’s capacity is called into question, medical and legal records are generally a key source of evidence. Having said that, courts will not allow parties to go on a “fishing expedition” with respect to production orders. This issue was recently considered in the case of Young v. Prychitko, 2021 ONSC 3150.
In this decision, the deceased executed his last Will on September 2, 2020 (the “2020 Will“), which provided for the majority of his estate, totalling approximately $500,000, to be distributed to his son, the applicant in the proceeding. The deceased’s daughter, the respondent, filed a Notice of Objection to the 2020 Will, alleging that the deceased lacked capacity and was subject to undue influence at the time of execution. Accordingly, the respondent sought an order for the production of the deceased’s testamentary documents, including his medical, financial and legal records. The applicant argued that the respondent failed to meet the evidentiary threshold to require the production of the aforementioned documents and, as a result, his position was that the order would be premature. Having said that, the applicant’s proposed timetable afforded the respondent with the opportunity to file further evidence in support of her objection at a later time.
In its decision, the court held that, prior to compelling the production of certain documents, it must be satisfied that the evidentiary threshold has been met. This minimal evidentiary threshold, as discussed in Neuberger Estate v. York, 2016 ONCA 191, protects against needless expense and litigation. This is particularly important in the case of small estates, as the costs involved in seeking productions may be disproportionate to the size of the estate. In its analysis, the court considered the following questions:
1) When can someone with an interest in an estate compel the propounder of the Will to prove it in solemn form?
2) How does someone satisfy the above test?
3) If the test is not yet met, what procedure should be followed moving forward?
The court stressed that simply alleging incapacity or undue influence is not enough. Even if there is some evidence to support this point, the court must assess whether the propounder can sufficiently answer the evidence.
In the end, the court held that the respondent’s evidentiary record was insufficient. As such, compelling the production of medical, legal, and financial records at this early stage was determined to be premature and would ultimately be “countenancing a fishing expedition.” The course proposed by the applicant was held to be the most prudent.
Thanks for reading! Have a wonderful day,
Suzana Popovic-Montag & Tori Joseph
The Victorians consigned themselves to more subtlety in their works of entertainment than we at present do. To all appearances, theirs was decidedly not an age capable of enjoying rap music and HBO comedies. The spiciest themes in their art, therefore, would include marriage intrigues, duels, financial scandals – or, as we see in George Eliot’s Middlemarch – controversial wills and eccentric testators.
The wills and estates subplot in Middlemarch is comprised of all the ingredients that you may see in a modern legal drama: a rich and erratic miser (Mr. Featherstone) manipulating his relatives with implied promises of future bequests; the idle protégée (Fred Vincy) who accumulates debts with the idea that the testator will bail him out; concern over the testator’s attachment to his young caregiver (Mary Garth); a train of impoverished relatives ill-concealing their greedy expectations; and much discussion on why “blood” was deserving and why “strangers” were not.
It is remarkable how little has changed in a century or so with respect to wills and estates. Then, as now, a Mr. Featherstone who promises a bequest, receives consideration, and then goes back on his word, may be found to have broken a binding contract – as occurred in Legeas v. Trusts & Guarantee Co. Likewise, a ruling of unjust enrichment (Moore v. Sweet) or specific performance (Folsetter v. Yorkshire & Canadian Trust Co.) could be made against him/his estate.
Still relevant today are the challenges of undue influence and incapacity. In the story, the scheming relatives are alarmed at Mr. Featherstone’s connection to Ms. Garth. She, all too aware of an undue influence allegation, refuses her patron’s money and ignores him when he orders her, while on his deathbed, to destroy his wills. In return, he throws his cane at her, which is perhaps evidence of incapacity.
Much as we may laugh at the relatives in Middlemarch who repeatedly visit Mr. Featherstone to remind him of his obligations to his “own flesh and blood”, our own law continues to ascribe significance to bloodlines. The Succession Law Reform Act defines “child” based upon conception, and the statute’s intestacy provisions speak of “issue” and the “nearest degree” of kindred. As many an adopted child and step-child knows, with respect to estates law, blood still matters.
There are some marked differences between Eliot’s England and modern Canada. Whereas Fred Vincy was loaned money in part because the creditors knew he was favoured by Mr. Featherstone, we now have businesses openly and explicitly offering advances to those who “have an inheritance coming”. Although we still use the Banks v. Goodfellow test for evaluating capacity, there have been some innovations, such as capacity assessments done after death and more nuanced, neuroscientific understandings of capacity. Lastly, if Mr. Featherstone had died in Ontario in 2020, he could not take as much comfort in tantalizing relatives and then crushing their hopes, for we have dependency support laws whereby testators must provide “adequate provision” for their “dependents”. Perhaps the creation of such laws was influenced, in part, by the ghoulish conduct of such Victorian literary characters.
Thank you for reading. Enjoy the rest of your day!
Suzana Popovic-Montag and Devin McMurtry.
On a recent trip to Rochester, New York, my fiancée and I had the pleasure of touring the George Eastman Museum and came across an interesting piece of estates lore.
George Eastman, the founder of Kodak and a pioneer of bringing photography to the mainstream, died leaving a Will drawn in 1925. As his wife had predeceased him and they had no children, Mr. Eastman devised all of his real property and left a substantial cash legacy to his closest family member, his niece, Ellen Dryden. Mr. Eastman’s estate held significant assets, and the value of liquid assets alone was estimated as exceeding the equivalent of USD$35 million today.
However, on March 9, 1932, only five days before his death, Mr. Eastman had a change of heart with respect to the distribution of his estate. Rather than leave the bulk of his estate to an individual, Mr. Eastman wished to ensure that his legacy would be one of service to the community that had fostered his photography empire. True to form as a philanthropist and benefactor of local enterprise, Mr. Eastman executed a Codicil to his Will, changing the primary beneficiary of his estate from his niece to the University of Rochester.
The testamentary dispositions under the Codicil represented a significant deviation from those under his Will. Typically, where a testator’s dispositions vary substantially from one instrument to another, concerns may arise with respect to the their testamentary capacity or the presence of undue influence.
A shrewd entrepreneur in his own right, Mr. Eastman recognized the risk that the Codicil might later be the subject of scrutiny or litigation. On the date the Codicil was to be executed, Mr. Eastman hosted a gathering at his residence and invited many guests and acquaintances. He devoted time to speaking to each individual guest about topical, personal subjects so that they could attest to Mr. Eastman’s soundness of mind in the event that a certain disgruntled niece chose to commence a Will challenge.
In a way, Mr. Eastman’s goal is not too dissimilar from some of the criteria that are relied on even today to assess a testator’s capacity. Third-party evidence that a testator appeared to be of sound mind immediately prior to the execution of a testamentary document may help a trier of fact draw a favourable conclusion with respect to capacity. While the formal criteria to assess capacity primarily consider a testator’s appreciation and understanding of his or her assets, Mr. Eastman’s clever scheme demonstrates that he turned his mind to questions about his own capacity and took steps to mitigate the risks.
Mr. Eastman’s Codicil was not later subject to any litigation, and the University of Rochester received a handsome distribution out of his estate.
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Today on Hull on Estates, Ian Hull and Rebecca Rauws discuss the recent Court of Appeal decision in Vanier v Vanier, 2017 ONCA 561, including the different tests for undue influence and the practice of assessing undue influence by capacity assessors.