A recent decision of the Ontario Superior Court of Justice considered an interesting question of fact and law. Will challenges in Ontario are ordinarily grounded on the basis that a testator lacked testamentary capacity, did not know and approve of the contents, or that the Will was procured by undue influence. In Cavanagh et al v Sutherland et al, however, the applicant sought to challenge the validity of her mother’s will on novel grounds; namely, that it was procured as a result of a mistake of fact.
The testator died in July 2016, leaving a Will benefiting 5 of her 6 daughters. The Will expressly excluded her sixth daughter, Carolynn, from sharing in the Estate. Carolynn objected to the issuance of a certificate of appointment on the basis that her mother lacked capacity or that the Will was procured by undue influence.
The estate trustees brought a motion for summary judgment seeking an order dismissing Carolynn’s objection and a declaration that the Will was their mother’s valid Last Will and Testament. At the hearing of the motion, Carolynn changed her position and chose instead to focus primarily on her belief that her mother had been operating on a set of mistaken facts.
Carolynn referred to a payment of $65,000 made to her by her parents in or about 2011, prior to the execution of an earlier will that also excluded Carolynn. She took the position that this payment was made in satisfaction of a loan to her father years earlier that her mother knew nothing about. Carolynn argued that her mother likely believed this payment was a gift to Carolynn in lieu of her inheritance and, accordingly, left her no benefit under the Will.
The court found that the evidence held otherwise. Notably, the evidence showed that the payment was not made in satisfaction of a loan, but rather as a result of a demand by Carolynn. In 1996, her parents had agreed to place her on title to a property to assist them in obtaining a mortgage. The mortgage was subsequently paid off in 2011, at which point Carolynn’s parents asked that she transfer her interest in the property back to them.
The evidence showed that Carolynn refused, instead asserting that there was always an intention that she remain on title to the property as legal owner. Carolynn’s parents ultimately offered to buy out her interest in the property in exchange for a payment of $65,000. Her mother later advised the lawyer who prepared the Will that this was to constitute Carolynn’s inheritance. It was clear to the court that the testator had considered this payment when the Will was drafted.
In the end, the evidence was such the court did not have to consider the effect of a true mistake of fact on the validity of a Will. However, the question of a mistake of fact would ordinarily tie into knowledge and approval and, specifically, whether the mistake was sufficient to negate the validity of the Will. In this case, it was apparent that the testator had turned her mind to the payment to Carolynn, and there was no question of a lack of knowledge and approval.
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A testamentary document may be set aside if it is not accurately representative of a testator’s intentions, for reasons such as an innocent mistake on behalf of the testator or solicitor, or the fraud of another.
In the British Columbia Supreme Court case of Johnson v Pelkey (1997) 36 BCLR (3d) 40, the Court stated that “any will that does not express the real or true ‘intention’ of the testator will be set aside, even if the testator had testamentary capacity, and was not subject to undue influence.”
Additionally, in Coleman v Coleman Estate, 2008 NSSC 396 (CanLii), the Nova Scotia Supreme Court observed that even if testamentary capacity is found to exist, it is possible that a testator did not properly know or appreciate the contents of their will due to an innocent mistake or by the fraud of another. As established in Vout v Hay,  2 SCR 876, the Supreme Court of Canada held that the propounder of a will must demonstrate “that the testator knew and approved of the contents of the will.”
When drafting a will, there is a duty on the solicitor drafting the testamentary document to make necessary inquiries. This duty is required so that the solicitor can demonstrate, based on discussions with the testator, that the testator fully appreciated what he or she was doing when they made the will.
In Johnson v Pelkey, the British Columbia Supreme Court found that there were differences between the solicitor’s notes and what appeared in the executed will, there were errors in the will, a property lot was left out of the will entirely, and an intended gift was missing. The solicitor testified these omissions were his mistakes or that his instructions may have been changed between receiving them and the execution. It was reported that upon the solicitor’s review of the will with the testator, the testator did not notice any of the omissions, errors and ambiguities.
When considering whether the testator had the knowledge of his or her testamentary document as well as approval of the contents of his or her will, based on mistake, are matters of fact to be determined based on all of the evidence of the case.
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In Re Estate of Michael O’Flynn, 2009 CanLII 57149 (ON S.C.), the Honourable Justice Brown encouraged the development of a culture of common sense in processing applications for certificates of appointment of estate trustee. This approach is further illustrated in the recent decision in Re Estate of Daniel O’Donnell, 2010.
In Re Estate of Daniel O’Donnell, the date of Mr. O’Donnell’s death was mistakenly listed as May 1, 2009 (not May 2) on the application for a certificate of appointment and resulting certificate. This mistake did not stop the administration of the estate. Mr. O’Donnell’s Will named Mr. Wilson as the sole estate trustee and sole beneficiary, and Mr. Wilson distributed virtually all of the estate assets to himself. He died a short time later, in July 2009. The administration of Mr. O’Donnell’s estate was yet to be completed, but the alternate estate trustee in Mr. O’Donnell’s Will had renounced her right to act.
Accordingly, the named estate trustee for Mr. Wilson’s estate, Ms. Thomas, applied for a certificate of appointment as succeeding estate trustee with a will for Mr. O’Donnell’s estate. The application materials filed by Mr. Wilson’s estate trustee listed May 2, 2009 as Mr. O’Donnell’s date of death. The original error in the date of death went unnoticed for some time.
When the mistake in the date of Mr. O’Donnell’s death was finally identified, the Toronto Estates Office took the position that the applicant should bring an ex parte motion to correct the error made in the original certificate before the second certificate could be issued. Ms. Thomas argued, among other things, that she should not have to bear the cost of correcting a mistake she had not made and that the cost of preparing such a motion was out of proportion to what was at stake in the succeeding application (the succeeding application was only needed to complete tax filings and distribute the remaining assets valued at only $1,000.00.)
Justice Brown’s solution was as follows. If the Estates Office identifies a discrepancy in the date of death between the original certificate and the application for a succeeding certificate, it should request an affidavit from the applicant that confirms that a mistake was made on the original certificate and attests to the correct date of death. Upon receiving such an affidavit, the Estates Registrar can then process the application for a succeeding certificate using the corrected date of death, and make any required changes to the original certificate and Ontario’s central registry which records information regarding estates.
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