Tag: Suspicious Circumstances
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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A recent decision of the New South Wales State Supreme Court considers allegations of suspicious circumstances and undue influence within the context of marital separation and subsequent reconciliation.
Colleen McCullough, an Australian author famous for having written The Thorn Birds and a number of other novels, died in January 2015, leaving an estate of approximately CDN $2 million. McCullough also left a series of testamentary documents executed during 2014 and 2015, several of which contained technical defects. Most of the documents named McCullough’s long-time husband, Ric Robinson, as sole residuary beneficiary. One document executed in July 2014 (and a subsequent purported codicil), however, directed the distribution of the entire estate to the University of Oklahoma Foundation (of which McCullough was a founding member).
The plaintiff, McCullough’s friend and agent who had been named as estate trustee in the Oklahoma Will, challenged the subsequent documents on the basis of lack of knowledge and approval and undue influence. She relied, in part, upon the fact that Mr. Robinson had an affair of which McCullough had become aware in or about 2010, and that, in July 2014, she wished to disinherit him as a result of the state of their relationship around the time of their separation. Further, the plaintiff argued that Mr. Robinson’s request of McCullough that she execute a new Will later in 2014 represented suspicious circumstances.
Notwithstanding the concerns raised by the plaintiff, the Court found that the October 2014 Will naming Mr. Robinson was valid. Evidence in support of such finding included the involvement of McCullough’s lawyer in the preparation of the Will. The Court acknowledged the absence of evidence that Mr. Robinson had pressured or coerced McCullough or her lawyer into preparing/executing the October 2014 Will or that her testamentary intentions remained unchanged following a reconciliation with her husband in late July 2014. The plaintiff’s submission that a request by Mr. Robinson that McCullough make a new Will leaving him an interest in her estate after their relationship had improved was not considered to constitute suspicious circumstances and fell far short of the coercion necessary for a finding of undue influence.
This decision emphasizes the difference between influence and undue influence. Among spouses, a degree of influence is to be expected in respect of estate planning. Such influence does not in itself invalidate a testamentary document and may not even satisfy a judge that suspicious circumstances surround the execution of a will.
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In W. (W.) v Y. (Y.), the testator’s holograph will gifted the entire estate to his second wife, excluding his daughter and son from his first marriage. The daughter commenced a will challenge and brought a motion for directions pursuant to Rule 75.06 of the Rules of Civil Procedure. The respondent second spouse opposed the motion. She sought to have the will challenge dismissed on the grounds that insufficient evidence had been presented to support an inference that the claim should be heard.
A. Gilmore J. heard the motion, examined the issues and made two key rulings:
- Financial Interest – Rule 75.06 allows any person who “appears to have a financial interest in an estate” to apply for directions as to the procedure for bringing a matter before the court. Justice Gilmore concluded that it would be inappropriate at this early stage to determine that the applicant has no financial interest. The threshold is a low one, such that an objector need not prove that she has a financial interest. In any event, the possibility of an intestacy should the will challenge be successful was sufficient to warrant the court’s involvement.
- Suspicious Circumstances – The deceased suffered an aggressive form of brain cancer that his daughter alleged caused cognitive impairments. The evidence adduced raised questions as to (i) the issue of capacity (echoed by Dr. Kenneth Shulman), and (ii) the prospect that certain portions of the will may offend public policy. Given the wording of the offending provisions, notably described as “disconcerting”, this issue was also linked to that of capacity. Gilmore J. ruled that it was not for the court to decide at the directions’ stage as to whether there are suspicious circumstances, but rather whether there is some evidence that would support a trial judge’s finding of suspicious circumstances in order to shift the burden to the propounder to prove capacity. The evidence in this case satisfied this requirement.
This decision reminds us that a motion for directions is often a preliminary procedural step in estate litigation. The court does not require conclusive evidence but only sufficient evidence to support an inference that the claims raise a genuine issue. Opposing such a motion in an attempt to terminate the proceeding as a whole will not often be successful.
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A couple of weeks ago, Jonathon Kappy and I podcasted on a recent decision of the Manitoba Court of Queen’s Bench, which raises the issues of knowledge and approval and suspicious circumstances, and which provides an effective overview of the shifting evidentiary burdens within the context of a will challenge.
As many of our readers may already be aware, if a last will and testament or other testamentary document is executed in compliance with the formal requirements (that is, it is executed by the testator, duly witnessed, and testamentary in nature), it is presumed to be valid. However, if a party challenges the validity of a will and is able to establish that its execution was surrounded by suspicious circumstances, the presumption that the will is valid not longer applies, and the burden of proving the will shifts to the person asserting the validity of the document (its propounder). Even if suspicious circumstances cannot be established, the challenger may seek to have a will proved in solemn form by the propounder. In order to prove a will in solemn form, the propounder need only provide basic evidence in support of the due execution of the will and the testamentary capacity of the testator. If the Court accepts that suspicious circumstances existed at the time of the execution of the will, the evidentiary burden on the propounder can become relatively onerous.
In the recent Manitoba case of Garwood v. Garwood Estate, 2016 MBQB 113, 2016 CarswellMan 198, after the will had been proved in solemn form, Justice Bond reviewed the circumstances at hand in determining that they were suspicious and that the will, accordingly, needed to be proved by the propounder to be valid on a balance of probabilities. However, the Court considered the suspiciousness of the circumstances in determining the strength of the evidence in support of the validity of the will that would be required. Justice Bond found that, although the test for suspicious circumstances had been met (the drafting solicitor’s notes were sparse and his testimony was not found to be credible, the testator had been legally blind and incapable of reading the will herself, suggesting that she may not have had knowledge of and approved of the contents of the will, etc.), the circumstances were not so suspicious as to require the propounder to provide compelling evidence in support of the validity of the will. The Court was satisfied that the will was valid simply on the basis of the fact that the will had been prepared by a lawyer in accordance with the testator’s instructions, none of the major beneficiaries were involved in the testator’s estate planning, and the lack of evidence supporting the allegations that the will was procured by undue influence and/or that the testator was mentally incapable at the relevant time.
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This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the recent decision of the Manitoba Court of Queen’s Bench in Garwood v. Garwood Estate, 2016 MBQB 113, 19 E.T.R. (4th) 55, which raises issues of knowledge and approval, suspicious circumstances, and shifting evidentiary presumptions within the context of a will challenge.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
This week on Hull on Estates, Paul Trudelle and Laura Betts discuss Poitras Estate v Poitras, 2015 ONSC 5049, (http://bit.ly/2ci3pZL) a recent decision of the Ontario Superior Court of Justice, released August 9, 2016, which deals with the issues of testamentary capacity, undue influence, suspicious circumstances and dependant’s support.
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According to the Ontario Human Rights Commission, approximately 60,000 of the 1.5 million older persons living in Ontario experience elder abuse. Of these reported cases, financial abuse is the most prevalent as it is the most common form of elder abuse in Canada.
As practitioners of elder law, we often see perpetrators who, sadly, are family members eager to get control of an aging parent’s finances. However, in other cases, the perpetrator is not a family member at all. Rather, he or she is an employee of a health care institution or a caregiver sent to provide in-home care.
Older persons in poor health are often isolated and vulnerable. This is particularly true with respect to those who live alone and are dependent on assistance from a health care worker, as well as those who reside in long term care facilities. Accordingly, many health care workers may find themselves in a position of power or influence over their charge. As a result, some Canadian provinces have enacted legislation that attempts to avoid the potential abuse of power that may emerge within these types of relationships.
For instance, in British Columbia, the Wills, Estates and Succession Act provides at section 52:
“In a proceeding, if a person claims that a will or any provision of it resulted from another person
(a) being in a position where the potential for dependence or domination of the will-maker was present, and (b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.”
Accordingly, in relationships of dependence, an automatic presumption of undue influence is established and the burden of proof is shifted onto the person upholding the will. As undue influence cases are notoriously difficult to prove, this legislation can facilitate the process.
In Quebec, the legislature has gone even further. Art. 761 of the Civil Code of Quebec provides:
“A legacy made to the owner, a director or an employee of a health or social services establishment who is neither the spouse nor a close relative of the testator is without effect if it was made while the testator was receiving care or services at the establishment. […]”
This restriction on testamentary freedom is viewed as a necessity given the need to protect vulnerable people.
In Ontario, there are no similar legislative provisions in the Succession Law Reform Act. However, the Courts have established the principle of suspicious circumstances which creates a presumption of undue influence when certain circumstances are present.
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In Zahn v. Taubner (80 E.T.R. (3d) 53), released in August 2012, the Alberta Court of Queen’s Bench considered a will challenge. Kay Ford ("the Deceased") died in 2000. She never had any children, biological or adopted. She was survived by three brothers. The Deceased was married to a gentleman named Henry Ford who died in 1972. He had three children from a prior marriage. After his death, the Deceased entered into a common-law relationship with Otto Zahn in the mid 1970s. Mr. Zahn, like Mr. Ford, had three children from a prior marriage. The Deceased separated from Otto Zahn in 1997.
The Deceased, prior to Zahn’s death, had relocated to the basement of her parents home. A year after Zahn’s death, the Deceased was diagnosed with terminal lung cancer. She was cared for by a woman named Nadia, one of two part time caregivers who had been helping look after the Deceased’s parents. The Deceased’s condition deteriorated such that in March, 2000 she was admitted to hospital where she died on May 25, 2000.
The Deceased executed three wills on the following dates: September 27, 1985 ("the 1985 Will"), April 4, 2000 ("the April 2000 Will") and May 5, 2000 ("the May 2000 Will"). The 1985 Will named the Zahn children as the Deceased’s residuary beneficiaries. The Wills made in 2000 both named one of the Deceased’s brothers as executor and named the Deceased’s three brothers as residuary beneficiaries.
The Zahn children challenged the validity of the 2000 Wills on the usual grounds of lack of testamentary capacity, lack of knowledge and approval and procurement by undue influence. The Court found that there existed suspicious circumstances:
- The lawyer who met with the deceased and attended on the execution of the 2000 Wills was a lifelong friend of at least one of her brothers;
- The lawyer was contacted by the brothers on repeated occasions throughout the will drafting process;
- The brothers, in a dramatic reversal of the Deceased’s long-time testamentary intentions, became her residuary beneficiaries under the 2000 Wills;
- The Deceased was referred to by multiple witnesses as an alcoholic and was observed by the witnesses as being intoxicated while in palliative care;
- When the Deceased was initially admitted to palliative care in hospital, never to return home, she was suffering from severe delirium and pshycological distress suspected to have been "related to opioid toxicity and liberal use of the drug Ativan, possibly aggravated by alcohol withdrawal";
- On March 21 and 28, 2000, a mere week before the April 2000 Will was executed, the Deceased scored 8/30 on a Mini- Mental Status Exam (MMSE). On April 10, 2000, some six days after the execution of the April 2000 Will, her score was 25/30, greatly improved to be sure yet still illustrative of some degree of impairment.
The Court considered the foregoing evidence in concluding that there existed suspicious circumstances. However, the Court concluded that the Wills made in 2000 were valid: testamentary capacity and knowledge and approval were proved by the Deceased’s brothers. The Court further concluded that the Zahn children failed to prove undue influence. In the Court’s eyes, the Deceased’s caregiver Nadia, who had become her close confidant, was the star witness:
"…in my view, it is significant that at no time did Ford ever specifically indicate to Nadia, who had become her confidant, that she had or was being unduly influenced or pressured by [any of the Deceased’s brothers] with respect to how they were to be treated in a new Will. While one can never predict with certainty how an individual will behave in certain circumstances, it is my view that this likely would have occurred if there was undue pressure, given the nature of the relationship between [the Deceased] and Nadia."
David M. Smith
Or, listen to the audio version of Will Challenge Litigation – Part 5
This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.
They continue to discuss the process of will challenges in closer detail. What makes a good case? They talk about the five different grounds upon which a will can be challenged:
- Lack of testamentary capacity
- Existence of suspicious circumstances
- Will not having been properly executed
- Existence of undue influence
- Possibility of fraud
If you have any comments, send us an email at email@example.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.
READ THE TRANSCRIBED PODCAST HERE
During this podcast on suspicious circumstances, we discussed the following:
(i) the general concept of “suspicious circumstances” and what amounts to such circumstances;
(ii) the onus of proof on a propounder of a will and an alleger of undue influence;
(iii) the meaning of the phrases “the true will of the deceased”, and the “righteousness of the transaction”;
(iv) the rule in Barry v. Butlin; and
(v) the Supreme Court of Canada’s decision in Vout v. Hay. ——–