Tag: Will Challenges
Handwritten Wills/Codicils are certainly quite rare, particularly for people with means. In certain circumstances, and particularly where the testator had made a pre-existing Will, the presence of a subsequent handwritten Will or Codicil can suggest the presence of suspicious circumstances.
As Paul Trudelle blogged last week, Larry King apparently executed a secret handwritten codicil in 2019 that divided his roughly $2 million estate amongst his five children, to the exclusion of his wife, Shawn King. Mrs. King apparently intends to challenge the validity of the 2019 codicil.
In Ontario, an amendment to a Will is referred to as a “codicil” and it is considered to be a Will, for the purposes of the Succession Law Reform Act. A handwritten Will, in Ontario, is referred to as a “Holograph Will” and the only requirement is that it be made wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. The fact that a Holograph Will is usually made without witnesses will often cause litigation, particularly if there are suspicious circumstances surrounding its execution and/or discord in the family of the deceased.
If Mr. and Mrs. King resided in Ontario, Mrs. King could pursue various claims in challenging the validity of the 2019 codicil (subject to the available evidence), including:
- Lack of requisite testamentary capacity on Mr. King’s part;
- Mr. King being subject to undue influence from any or all of his children (or other third parties);
- Presence of suspicious circumstances in the execution of the codicil; and
- Presence of fraud in the execution of the document (which is pleaded quite rarely, as there are serious costs consequences for those that make such an allegation but are unable to prove it).
It will certainly be interesting to see how this matter unfolds, particularly taking into account that $2 million is not a significant amount when the costs of litigation are taken into account.
Interestingly, some sources suggest that his Estate is actually worth $50 million, which sounds a lot more accurate!
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In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
Thank you for reading,
Ante-Mortem Probate, or Pre-Death Probate, is a process of probate which validates the Will of a testator during his or her lifetime and may be particularly useful for testators who fear that their Will may be subject to a challenge following their death.
Various models of Ante-Mortem Probate have been explored in the past by American scholars and include the following proposed models:
- The “Contest Model”, reviewed by Professor Howard Fink, is where each of the beneficiaries are identified, including those that would benefit on an intestacy and the testator essentially becomes the moving party in his or her own suit against all possible beneficiaries of his or her Estate. [Antemortem Probate Revisited: Can an Idea Have a Life After Death? (1976) 37 Ohio St LJ 264]
- The “Conservatorship Model”, explored by Professor John H. Langbein, is where the testator is required to apply to the Court in a manner similar to the “Contest Model”, however, instead of each of the specific beneficiaries being involved, a Guardian Ad Litem (Conservator) represents the interest of all potential beneficiaries, including any unborn or unascertained beneficiaries. [Living Probate: the Conservatorship Model (1980)]
- The “Administrative Model”, set out by Professor Gregory S. Alexander and Albert M. Pearson is neither judicial nor adversarial. There is no requirement of notice to the beneficiaries or in fact “interested parties” as one of the significant concerns with the other models of Ante-Mortem Probate is the confidentiality of the testator. [Alternative Models of Antemortem Probate and Procedural Process Limitations on Succession (1979-1980) 78 Mich L Rev 89]
Only certain American States allow Ante-Mortem Probate, whereas Canada does not have any provinces or territories with a similar arrangement.
Given the number of suits that are commenced following the death of testators across Canada, such an arrangement could be beneficial in that at the very least, a testator who expects that there will be a challenge to his or her Estate plan could take an active part in adjudicating whether his or her Will is indeed, valid.
Considering the complicated familial arrangements that are often present in our society today, perhaps addressing challenges of things like capacity of the testator, undue influence or the presence of suspicious circumstances would make more sense before the testator’s death. This is particularly an issue where a testator’s capacity had been in question for a while and the Will being challenged was executed a decade or more before death.
There are, of course, certain potential negative effects of any Ante-Mortem Probate regime, particularly the possibility that it would encourage litigation that would not otherwise arise, following the death of the testator.
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Assessing whether a testator had testamentary capacity when executing a will can be difficult. When pertinent medical records are available, they can be an excellent resource but more often than not, we need to look beyond the medical evidence in order to obtain an accurate and complete picture of the testator’s state of mind at the relevant time. One method of accomplishing this is to engage a psychiatrist to conduct a psychological autopsy (also referred to as a retrospective capacity assessment).
The psychological autopsy seeks to reconstruct the mental state of the testator at the time the disputed will was executed. This is done by reviewing the medical records as well as examining evidence such as first-hand accounts given by friends, family, neighbours, and the lawyer who drafted the will. In reviewing the information gathered, the psychiatrist is looking for any evidence of symptoms that may have resulted in a lack of testamentary capacity.
In forming an opinion, the psychiatrist must be careful to look specifically at the elements of testamentary capacity as opposed to capacity in general. This will include a focus on whether the testator understood the nature of the act of making a will and its effects, the extent of the property being disposed of, and the claims of persons who would normally expect to benefit. The presumption of competence must also be considered to be the starting point to any evaluation of testamentary capacity.
Additionally, the psychiatrist should be sensitive to some frequent missteps that can arise during this process. This article in the Psychiatric Times lists some of the most common errors as:
1- Equating unusual bequests with incapacity;
2- Failing to obtain an accurate lists of assets;
3- Reliance on a diagnosis or structural brain changes rather than on functional criteria; and
4- Confusing impairments on standardized tests with failure to meet relevant criteria, and automatically equating delusions with lack of testamentary capacity.
The psychological autopsy began as a useful method to assist in determining a person’s cause of death, specifically in cases where suicide was a possibility. Rather than simply looking at the physical elements that contributed to a person’s death, psychiatrists were invited to consider the psycho-social factors as well. In this way, a global picture of the person’s life emerged that helped tell the complete story rather than narrowly looking at a snapshot in time. The practical application of this method has evolved and has since proven to work equally well in the context of assessing testamentary capacity.
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Lack of testamentary capacity is one of the most frequently relied upon grounds to challenge the validity of a Will. As capacity is task specific and fluid, it is possible to see a testator that has capacity first thing in the morning and for it to be gone by mid-afternoon. It is also not uncommon for a testator to lack capacity in other respects but to retain the capacity necessary to make a Will. For a lawyer drafting a Will for an individual with questionable capacity, this has always been a challenge.
In John Poyser’s book, “Capacity and Undue Influence”, he addresses this difficulty and suggests the practice of the “tear-away will” as a possible solution. The basic premise is that in simplifying and breaking down a more complex Will into a main Will and one or more Codicils, it is more likely to withstand a capacity challenge.
For instance, a lawyer faced with a client in a weakened physical and mental state may have concerns as to whether the client has testamentary capacity. The client may be alert long enough to provide straightforward instructions but it is not clear whether the client has the ability to comprehend a 20-30 page legal document containing more complex gift-over provisions, Estate Trustee fees, and replacement Trustee clauses. If the Will is later challenged, it will almost certainly be difficult to convince the Court that the testator understood all of these provisions in light of their frail condition at the time.
As a result, Poyser suggests having the testator execute a main Will containing only the most important elements such as any specific bequests, residue clauses, and the naming of an Estate Trustee. This document should ideally be less than one page. Then, after a brief rest, if necessary, and when the testator is alert again, a Codicil can be prepared that contains the more complex provisions such as contingent gift-overs and various boiler plate clauses.
In this way, if the Will and Codicils are later challenged on the grounds that the testator lacked testamentary capacity, it will be a much easier task to demonstrate to the Court that the testator had the capacity to understand the most straightforward and basic provisions contained in the Will itself. If any doubt remains, it is likely that it will only be the Codicil(s) that fall due to lack of capacity.
It is always critical for the drafting lawyer to look beyond the immediate task of executing the Will and be cognizant to the issues that may arise following the testator’s death. If there is the possibility of a future capacity challenge, it is prudent to safeguard the Will as best as possible beforehand.
Thank you for reading.
Listen to Will Challenge Litigation – Part 11
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the differences between quantum meruit and propriety estoppel. As with any add-on claims, the courts require solid corroboration. They also discuss claims of resulting trust and claims of constructive trust.
If you have any comments, send us an email at firstname.lastname@example.org or leave a comment on our blog.
A question was recently posed to Ken Gallinger, an ethics columnist with the Toronto Star: was one of two brothers who received his father’s estate ethically obliged to share his entitlement with his disinherited brother? The questioner stated that he was shocked that his father chose to make such a distribution when there was no indication that the father intended to treat his sons other than equally in his Will. The advice of Gallinger was along the lines of: no, you are under no obligation to share the bequest…but… you would probably feel better if you did.
Estate litigation is one of the few areas of law where you could conceivably see the same question posed to an advice columnist as to a lawyer. Reading the exchange between the questioner and Gallinger gave me pause to consider what my answer would be and, more to the point, to consider that I had yet to be asked that question.
Lawyers can sometimes present as insensitive, hiding the fact that they have a personal, moral or spiritual viewpoint because it does not fall within the parameters of their retainer agreement with their clients. Paid by their clients to provide legal advice, lawyers are not expected to opine on the moral dilemma presented by an unexpected windfall. Will challenges are concerned with ascertaining the true intentions of the testator, not with determining whether those intentions were motivated by bitterness or spite.
In concluding his response to the question posed, Gallinger made the comment: "sometimes it’s better to be generous than right." Enough said.
Have a great weekend,
A recent decision out of Alberta deals with the often thorny issue of costs on an abandoned will challenge.
In Re Dool (Estate of), 2007 ABQB 122, challengers to a will decided to abandon their challenge for "financial and health reasons". They sought a discontinuance without costs. The Respondent sought costs from the challengers.
The court not only allowed the action to be discontinued without costs, but it allowed the Applicant’s their costs from the estate.
The circumstances of the case leading to such an award merit closer review. The court noted that the will challengers had significant grounds which warranted judicial inquiry. The court also found that the Respondents failed to cooperate with the Applicants in addressing these concerns. The court also referred to the serious health problems of the Applicants and the effect that this had on their ability to continue with the litigation. The court went on to make significant note of the conduct of counsel for the applicant, which was "reasonable" throughout, as compared to counsel for the Respondent, which was said to be "aggressive, uncooperative and demeaning". This approach by the Respondent prevented the Applicants from effectively assessing the reasonableness of their claim, as was their obligation.
The court specifically addressed the "comportment of counsel". The judge noted that “It was not pleasant having counsel for the Respondent appear before me." Counsel’s conduct was said to border on contempt. The court lamented the increasing frequent lack of civility between counsel, and the comportment of counsel in addressing the court. This clearly influenced the judge in making the discretionary costs award that he did.
One lesson to be taken from this interesting case is that, aside from the merits, the approach taken by counsel can have a significant impact on a costs award made by the court. It is quite possible that a very different approach would have resulted in a very different costs award. The Respondent may have been able to avoid an award of costs in favour of the Applicants, based on the prevailing case law. While counsel must vigorously and fearlessly advance the positions of their clients, this is most effectively done in a reasonable and civil manner.
Thank you for reading,
During Hull on Estate and Succession Planning Episode 39, we continued our discussion on the Family Conference, focusing on the actions to be taken in regards to non-participating family members. We also discussed the importance of documentation and defined will challenges.