Tag: will

20 Nov

CHALLENGING A WILL: AN ILLUSTRATION Part IV

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Today is the final installment of my discussion of Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.).

After dismissing the will challenge on the basis of due execution, testamentary capacity and knowledge and approval, the court turned to the issue of undue influence. Despite the presence of suspicious circumstances, the court held that the challengers, not the propounder, had the burden of proving undue influence. However, while the son did not have the burden of disproving coercion, his evidence was to be tested against the preponderance of probabilities that rationally emerge out the all the evidence in the case.

The deceased was found to be vulnerable and dependant upon her son for all aspects of her existence. Conversely, the son was found to have an aggressive and domineering personality, both in general and with respect to his desire for absolute ownership of the family holding company.

The court found that the son was very caring of his mother. However, it did not accept his evidence on the issue of undue influence. The court asked a number of rhetorical questions as to why the mother would make the will that she did, despite the circumstances. The court concluded that that will was procured by the undue influence of the son.

The will was therefore found to be invalid.

Paul Trudelle

19 Nov

CHALLENGING A WILL: AN ILLUSTRATION Part III

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Yesterday, I discussed Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.), and the finding of the judge that suspicious circumstances existed, placing the onus back on the propounder to prove testamentary capacity and knowledge and approval.

As to testamentary capacity, the court referred to the oft – quoted decision of Banks v. Goodfellow, and the test for testamentary capacity.

It noted that the capacity required to direct the distribution of one’s estate by Will is “modest”. To be of a sound and disposing mind and memory, a testator must:

  1. be aware that they are making a will that takes effect on their death;
  2. understand the nature and extent of the estate to be disposed of by Will;
  3. be aware of those having a claim to the estate;
  4. have no disorder of the mind.

The court reviewed the evidence of the plaintiffs and the witnesses (other than the son) as to testamentary capacity. The court was satisfied that on the preponderance of the evidence, the testator had the necessary capacity to direct the disposition of her estate by will as of the date of the will.

As to knowledge and approval, the court noted that a suspicious circumstances raised in the case required that the son, as the propounder of the will, prove that the deceased knew of and approved of the contents of the will. The court did not accept the evidence of the son to the effect that the deceased had to carefully read her will and discuss it with him on numerous occasions. Despite this, the court concluded that the deceased knew of the provisions of the will that she signed.

To this point, the will survived most of the challenges to it. Will the will be accepted to probate? Can it withstand the final challenge: undue influence? Tune in tomorrow.

Paul Trudelle

18 Nov

CHALLENGING A WILL: AN ILLUSTRATION Part II

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Yesterday, I introduced the will challenge decision of Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.).

After disposing of the issue of due execution, the court turned to the doctrine of “suspicious circumstances”. The court referred to these Supreme Court of Canada decision of Vout v. Hay, where it was held that suspicious circumstances maybe raised by circumstances surrounding the preparation of the will, circumstances tending to call into question the capacity of the testator; or circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

Generally, the propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity. However, upon proof that the will was duly executed, the propounder is aided by the rebuttable presumption that the testator knew and approved of the contents and had the necessary testamentary capacity.

The burden of establishing suspicious circumstances rests on those attacking the will. If evidence can be adduced which, if accepted, would tend to negative knowledge and approval or testamentary capacity, this burden is satisfied and the legal burden reverts to the propounder.

In Hix, it was the son who drafted the challenged will. The Court quoted from Vout v. Hay as follows:

“… if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.”

The court concluded that the son should never have agreed to draw the will for the deceased. The fact that he did in the circumstances “does more than raise suspicion; it cries out for it.”

Tomorrow: testamentary capacity, and knowledge and approval

Paul Trudelle

21 Oct

Unduly Influenced Not to Make a Will?

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I recently attended a breakfast seminar hosted by Hull & Hull LLP, where I listened to my colleague, Natalia Angelini, speak about a testator’s capacity to give instructions for the preparation of a Will.   
 
During Natalia’s discussion, she spoke about the varying levels of capacity for different transactions.  Natalia also touched on the traditional grounds that a Will could be challenged.   I was particularly intrigued to learn that the circumstances surrounding the failure of a testator to make a will could be advanced as forming the basis for a will challenge.  

One of the traditional grounds for a will challenge is undue influence.  At its very basic form, undue influence occurs as a result of pressure brought to bear on the testator in giving instructions and executing the testamentary document.  The pressure brought on the testator, must be of such a degree that the testator has reached the point of thinking, "It is not my wish, but I must do it".

In contrast, "reverse" undue influence (as it has been called) occurs where a testator is being prevented from signing a Will.

As this interesting topic continues to evolve, I am confident that the estate & trust bar will be looking on with interest.

Rick Bickhram

 

26 Sep

Challenging A Will Before Death

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It has commonly been assumed that a will challenge cannot proceed prior to the death of the testator. The will speaks only upon the death of the testator, and a testator enjoys testamentary freedom to revise or otherwise revoke the will at any time prior to death, or to deal freely with his or her assets.

However, as reported in the New Jersey Law Blog, a recent California case has determined that when a conservator secures court approval of an estate plan while an individual is still alive, any challenge to the will must be made at that time, and not after the death of the individual.

In Murphy v. Murphy, the Court of Appeal for the State of California, First Appellate District, Docket No. A115177, the testator had suffered a stroke. A conservator was appointed for the testator, who sought court approval of the testator’s estate plan. A son, who was left out of the estate plan, was put on notice and did not challenge the estate plan.

After death, the son sought to challenge the estate plan. The Court of Appeal held that the son’s claim was barred on the basis of “collateral estoppel”. The son was not allowed to relitigate matters that were litigated in a prior proceeding.

The blog’s author observes that the decision “essentially bulletproofs the will of a person found incompetent and placed under the protection of a conservator, if the Court approves a revised estate plan with appropriate notice being given to all parties in interest who may have any basis to object.”

In Ontario, there is no similar procedure for approval of an estate plan. In fact, an attorney for property or guardian for property is expressly barred from making a will on behalf of the incapable person.  

However, at least two Ontario decisions (Stern v. Stern and Weinstein v. Weinstein (Litigation Guardian of) have commented to the effect that the court should not “close its eyes to the fact that litigation among expectant heirs is no longer deferred as a matter of course until the death of an incapable person”.

Paul Trudelle

24 Sep

More on Mutual Wills

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At the October 2007 Hull and Hull Breakfast Seminar, I spoke on the concept of “Mutual Wills”. (See my paper, here.) In a recent decision out of Alberta, the Court again addressed the issue of mutual wills.

In Powell v. Glover, [2008] A.J. No. 961 (Alta. Q.B.)  the deceased and her spouse left wills that specifically provided that the wills were further to an agreement not to revoke or alter the will after the death of one of them. The wills went on to provide that the estate of the first to die was to pass to the surviving spouse. The wills further provided that upon the death of the surviving spouse, the surviving spouse’s estate was to pass to named residual beneficiaries, being children of the two spouses from prior marriages.

 

The husband died in 2003 and his estate passed to his spouse. She took the position that she was the sole beneficiary under her spouse’s will, and that she has no obligation to ensure that upon her death, any residue was to be distributed in accordance with the prior wills.

 

The Court had little difficulty in finding that the wills were mutual wills. The Court enforced the agreement between the spouses not to vary from the prior distribution agreement made while both spouses were alive. The surviving spouse’s estate (upon her death) was charged with a trust in favour of the residual beneficiaries of the mutual wills.

The fact that the surviving spouse was still alive did not make the Application premature.

The more difficult issue was what property was charged with the trust. The Court found that the trust would apply to all property acquired by the surviving spouse upon the death of the first spouse. The surviving spouse is allowed to deal with the property she acquired from the other during her lifetime, but is not entitled to divest her property intentionally in order to avoid the terms of the mutual will.

 

Paul Trudelle

23 Sep

Will Challenge Litigation – Part 6 – Hull on Estate and Succession Planning

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Or, listen to Will Challenge Litigation – Part 6 by clicking here.

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They pick up where they left off last week by addressing undue influence. What is undue influence and how do we prove it? Next week they will continue their discussion on the different grounds upon which a will can be challenged.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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22 Sep

STAMP = SIGNATURE?

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Does the act of a paraplegic testator in stamping his will with a stamp bearing his name constitute the act of signing the will within the meaning of section 4(1)(a) of the Succession Law Reform Act (“SLRA”)? 

That was the question that was posed to the Honourable Justice D. M. Brown in the matter of The Estate of Gerald Francis Clarke, 2008 CanLII 45541 (Ont. S.C.) released September 12, 2008.

There, the Applicants applied for a Certificate of Appointment of Estate Trustees for the estate of the late Gerald Francis Clarke.  The Application appears to have been unopposed.

The affidavit of execution indicated that the testator was a paraplegic and unable to take a pen in his hand to sign or initial the pages of his will.  The witness deposed that he saw the testator execute his will by placing a stamp which reads “Gerald F. Clarke” on the signature line at the end of the will and on each page of the will.  The witness further deposed that the testator executed the will in the presence of himself and another witness, as attesting witnesses.

Section 4(1)(a) of the SLRA provides that a will is not valid unless “at its end it is signed by the testator or by some other person in his or her presence and by his or her direction”. 

The Court relied upon In Re Bradshaw Estate, [1988] N.B.J. No. 709 (P.C.). There, in interpreting a similar provision in the New Brunswick Wills Act, the Court formulated the applicable test as follows:

(i) were the markings on the will made by the testator, and

(ii) were they intended as his signature and to represent the best that the testator could do by way of writing his name under his physical circumstances? 

Brown J. held that this test should be applied in determining whether a testator had complied with s. 4(1)(a) of the SLRA.

Brown J. concluded that on the evidence before him, the testator stamped the will with a stamp bearing his name and that his stamping of the will in that manner represented the best that he could do by way of writing his name given his physical circumstances. 

A Certificate of Appointment issued with respect to the stamped will.

Paul Trudelle

16 Sep

Will Challenge Litigation – Part 5 – Hull on Estate and Succession Planning

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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:

  1. Lack of testamentary capacity
  2. Existence of suspicious circumstances
  3. Will not having been properly executed
  4. Existence of undue influence
  5. Possibility of fraud

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

12 Aug

Deductions from Compensation – Hull on Estates and Succession Planning Podcast #125

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Listen to Deductions from Compensation.

This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

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