Tag: Due Execution
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,  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.
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In a will challenge proceeding, the propounder has the onus of proving due execution, knowledge and approval, and testamentary capacity. The propounder is assisted by a presumption that if the will was duly executed, after having been read over or read to the testator who appeared to understand it, the testator had knowledge and approval, and the necessary testamentary capacity. This presumption can be rebutted by evidence of suspicious circumstances, based on evidence led by the challenger. The challenger must introduce evidence that, if accepted, refutes knowledge and approval or testamentary capacity. If this is done, the onus reverts to the propounder. Where a challenge is based on undue influence, the onus of proving undue influence is on the challenger.
The difficulties that arise for a challenger in refuting the presumption of capacity or of proving undue influence are discussed in the Alberta Court of Queen’s Bench decision of Logan Estate (Re), 2019 ABQB 860 (CanLII).
There, the deceased had 2 prior wills that provided that her estate was to be divided amongst her 6 children. If a child was to predecease, that child’s share would go to his or her issue. Subsequently, one of the children died. The deceased made a new will, leaving her estate to the 5 surviving children. A child of the predeceased child challenged this will.
The evidence of the drafting solicitor was that the deceased directed the changes. According to the lawyer’s notes, the husband of the predeceased child (the challenger’s father) told the deceased that he had lots of money, and that his children would be well taken care of financially under his estate.
The husband later denied this. However, by this time, the husband was suffering from dementia. He was not able to provide an affidavit or be examined on his evidence.
The court referred to the onuses, and the “epic hurdle” on the challenger. Section 11 of the Alberta Evidence Act (similar to s. 13 of the Ontario Evidence Act) requires that in an action by or against heirs, next of kin, executors, administrators or assigns, an opposed or interested party may not obtain a judgment on that person’s own evidence in respect of any matter occurring before the death of the deceased person unless the evidence is corroborated by other material evidence.
On the issue of corroboration, the court quoted from Ian Hull and Suzana Popovic-Montag’s Probate Practice:
“The issue of meaningful corroboration with respect to claims against an estate is a fundamental starting point in any estate litigation evidentiary analysis. One of the unique challenges of estate litigation is that the star witness and primary source of information is, almost always, dead. Section 13 of the Evidence Act specifically addresses this dilemma, and aims to prevent claims against estates that are based on mere allegations. The provision requires that there be independent corroboration of allegations [claims] against estates.”
As the evidence of the challenger could not be corroborated, due to her father’s incapacity, her challenge to the will was dismissed.
In dismissing the challenge, the court offered this cold comfort to the challenger:
I appreciate that [the challenger] is disappointed that she is not receiving what she believes is her proper share of Velma’s estate. However, a family member (even a lineal descendant) does not have an automatic right to a share in the estate of a deceased relative who leaves a will. The testator, through her will, has the sole power to determine the distribution of her assets. A testator may change her mind from a previous will, whether for good reason or not. These harsh realities apply even where the ultimate distribution is contrary to that family member’s sense of fairness or rationality.
The decision was upheld on appeal by the Court of Appeal of Alberta at Logan Estate (Re), 2021 ABCA 6 (CanLII).
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A recent decision of the Hong Kong Court of Appeal addresses the importance of the solicitor’s role in preparing and attending to the execution of a Will, particularly in the context of a Will challenge. The decision is discussed in this article. Although the decision is from Hong Kong, the test applied in respect of testamentary capacity is, as it is in Canada, the classic criteria from Banks v Goodfellow. In this regard, I found it interesting to consider the Hong Kong Court’s decision.
In Ontario, when a Will has been duly executed, meaning that it has been executed in accordance with the requirements set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, there is a presumption that the Will is valid. However, where suspicious circumstances are shown to exist surrounding the preparation and execution of a Will, this presumption will be spent, and the propounder will be required to prove that the testator had the requisite testamentary capacity to execute the Will. We have previously blogged about which party must prove certain elements in a Will challenge.
According to the article, the same presumption arising from due execution appears to exist in Hong Kong. In the decision of Choy Po Chun & Anor v Au Wing Lun (CACV 177/2014), the Hong Kong Court of Appeal places some additional responsibility with respect to the “due execution” of Wills on solicitors preparing them. In particular, the Court of Appeal sets out that a solicitor should undertake proper groundwork and make proper enquiries, such as following a checklist from the British Medical Association regarding the assessment of mental capacity, and the “golden rule” that a Will for an elderly or ill testator should be witnessed or approved by a medical practitioner who has examined the testator.
In this decision, the Court of Appeal set aside the lower court’s decision that the Will in question was valid. As the solicitor had not taken the additional steps noted above (namely following the checklist and the “golden rule”), it could not be presumed that the Banks v Goodfellow criteria had been met, and therefore each element of the test should have been asked, and proven by the propounder of the Will.
In reviewing the guidelines set out by the Court of Appeal, as summarized in the article, it seems as though the solicitor is being asked to consider whether suspicious circumstances may appear to exist, and to take additional steps if that may be the case. In particular, the Court of Appeal suggests the following:
- Where Will instructions are given by the children of an elderly testator who is not in good health, the lawyer should meet with the testator personally to confirm instructions;
- In the case of an elderly or infirm testator, the solicitor should follow the checklist noted above; and
- The solicitor should follow the “golden rule” when preparing a will for an aged or seriously ill testator.
While this decision is not binding in Canada, it nevertheless raises some interesting points, which a prudent solicitor may wish to consider and implement in their practice. For instance, it may be advisable to confirm instructions directly with the testator if initially provided by another individual, and take steps to confirm whether a testator has the requisite capacity in circumstances where he or she may be elderly and/or in poor health.
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The issue of how strictly a testator must comply with the formal rules for validly executing a will is one that has encouraged legislative change across the country in recent decades. If the standard is too high, the result will be the frustration of the testamentary intentions of people who died thinking that they had valid wills when in fact they were invalid. If the standard is too low, uncertainty as to what qualifies as a valid will and what doesn’t may lead to an increase in litigation.
Ontario maintains a strict compliance regime, requiring that the statutory requirements for valid execution of a will are carefully adhered to and denying courts the authority to validate a document that fails to meet them. Most other provinces and territories have given their courts at least some authority to cure deficiencies in the execution of a will, provided that the document is found to represent the testamentary intentions of the deceased.
While the debate continues in Ontario, a recent Alberta case may serve to assuage some of the concern that relaxing the strict requirements for execution will lead to the opening of the floodgates.
In Re Woods Estate, the Court of Queen’s Bench considered an application under Alberta’s Wills and Succession Act for a declaration that certain documents were valid as a will. The deceased, having been advised that she had approximately a year and a half to live, asked one of her sisters to help her retain a lawyer to prepare a will. In anticipation of the meeting, she took some notes on a pad of paper. A lawyer later attended at her home and completed a questionnaire used by her firm to take information for a will. The questionnaire included information about the testator’s choice of executor, the assets, her wishes with respect to her remains, and how she wanted the residue of her estate to be divided. The lawyer was going to contact the intended executor (an institution) to confirm their willingness to act, and arranged to return several days later to have the will executed. Unfortunately, the deceased died early the following morning. The Court had to consider whether to grant probate of the deceased’s notes and/or the questionnaire as representing her last will.
Turning to Alberta’s statute, the Court considered section 14 of the Act which provides that to be valid, a will must be in writing and “contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will”. There are further sections (15, 16, and 17) that add requirements for a formal will, holograph will, or a military will. Section 37 of Alberta’s Act allows the Court to relieve a will from the strict requirements under sections 15, 16, and 17, but not 14. Accordingly, because the notes and the questionnaire were not signed by the deceased with the intention that they have effect as her will, the Court was unable to apply section 37. The Court also considered whether the Act‘s rectification provisions could be used and held that they could not because they required that the omission of a signature be due to pure mistake or inadvertence. Here, it was never intended by the deceased that the notes or questionnaire would become a will and so it could not be said that the failure to sign was inadvertent.
Sadly, the presiding judge noted that she was satisfied that the questionnaire accurately reflected the testamentary intentions of the deceased and that she had no doubt the testator would have executed a will on those terms, but that Alberta statute nevertheless did not authorize the Court to validate the will.
As noted in the case, Alberta’s statute takes a “middle position” between strict compliance jurisdictions like Ontario and substantial compliance jurisdictions, where the Court has broader powers to grant probate to a document that is found to represent the testamentary intentions of the deceased notwithstanding the lack of a signature.
It seems that even in provinces where there has been some relaxation of the formal requirements for the valid execution of a will, there may still be cases where a document that is found to represent the testamentary intentions of the deceased will not be admitted to probate. Alberta’s experience demonstrates that there may be a range of legislative solutions to the formal validity issue, each with its own advantages and disadvantages.
Whether Ontario will move away from strict compliance in the future remains to be seen.
The recent England and Wales Court of Appeal decision in Olins v. Walters  EWCA Civ 782 gained some degree of notoriety among British legal observers. This Mutual Wills case was notable for its clear pronouncement that a constructive trust is impressed on the estate of the first testator to die during the lifetime of the second testator.
Of arguably greater interest was the somewhat remarkable finding of the Judge of first instance ( see  EWHC 3060 (Ch).] on the usually mundane issue of due execution. One of the witnesses to the Will stated under oath that she was "more than 100 percent sure that she had not witnessed the signature of the deceased on the Will." Notwithstanding this evidence, the trial judge held that she was honest but mistaken and upheld the Will.
It is not often easy to mess with legal presumptions. Consider, for instance, the commentary subsequent to the Supreme Court of Canada decision in Pecore v. Pecore which focused on the suggestion that resort to presumptions is made as a "last resort." While it is tempting to think that the evidence will always rule the day, the trial judge finding in Olins v. Walters (which, curiously, was appealed on the mutual wills issue but not on the finding of due execution) suggests that the presumption of due execution of a Will is particularly entrenched.
David M. Smith
READ THE TRANSCRIBED PODCAST HERE
During our podcast, we discussed the following legal issues:
(i) concepts of undue influence
(ii) suspicious circumstances
(iii) due execution; and
(iv) introduced the concept of international wills ——–