( Disponible en anglais seulement )
The recent Ontario Superior Court case of Graham v. McNally Estate and Blais[1] involved a will challenge based on three commonly used grounds for invalidating a will: (a) lack of testamentary capacity; (b) undue influence; and (c) suspicious circumstances surrounding the execution of the will.
The applicant in the case, Patricia, challenged the validity of a will executed in 2020 by her late sister, Sheila, who died approximately one year after preparing the will. Patricia was not named in the will as a beneficiary, nor as Estate Trustee. The named Estate Trustee was Katherine, a friend of Sheila’s of over a decade. Katherine and her spouse were also named as beneficiaries in Sheila’s will. It was undisputed that Patricia last saw Sheila in 2011, though the sisters remained in contact through weekly phone calls until 2019. After 2019, there had been little to no contact.
Patricia’s application was made pursuant to rule 75.01 of the Rules of Civil Procedure,[2] which allows a person “appearing to have a financial interest in an estate” to make an application to prove the will in Court. The issue before the Court was whether she had met the minimal evidentiary threshold required for the Court to permit the application to proceed. In dismissing the application, the Court provided a useful discussion around testamentary capacity, undue influence and suspicious circumstances, and the minimum amount of evidence required for each.
Testamentary Capacity
In order to make a will, a testator must have a minimum level of mental capacity. Though exactly what this means is not specified in statute, Courts have generally found that this requires the testator to understand the nature of making a will and its effect, to understand the extent of the property they dispose of through the will, and to understand the claims others might make on their estate (such as dependents or family members).
The applicant asserted that as far back as 2007, Sheila showed signs of confusion, had difficulty with numbers, and was not of sound mind when she executed the will. One of the only examples cited was a phone call with Sheila in early 2019, in which Sheila said that she would be naming Katherine as her estate trustee, and that she wished to be buried in an unmarked grave, the location of which would be known only to Katherine. Patricia argued that this was evidence of Sheila’s “strange and emotional state.”[3] However, there was no objective evidence of Sheila’s condition before the Court, such as medical documentation. Therefore, mere speculation on the part of the will challenger will not be enough to call testamentary capacity into question.
Undue Influence
In order to find that someone exerted undue influence over a testator, there must be some form of coercion. The influence imposed on the testator must be “so overpowering that the document reflects the will of the influencer and not that of the deceased.”[4]
The applicant’s argument here was that Katherine unduly influenced Sheila to discard her relationship with Patricia, and name Katherine as Estate Trustee and beneficiary. Sheila was alleged to have been devoted to a religious figure: Saint Brother Andre Bessette. Patricia claimed that Katherine had told Sheila that she was related to the family of the Saint, after which she had control over Sheila. In terms of external evidence however, the claims were once again unsubstantiated, and involved merely the applicant’s own impressions that Sheila found Katherine “saintly.”[5] She could not produce a concrete example of when coercion occurred. Though there was evidence that Katherine helped Sheila around the house from time to time, this was not enough to suggest a dependency on Katherine.
Suspicious Circumstances
The Supreme Court of Canada has held that “[u]pon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.”[6] The presence of suspicious circumstances around the preparation or execution of a will can affect the availability of this presumption.
In this case, there was no evidence before the Court that the will was executed without the requisite formalities. There was also no evidence of suspicious circumstances around the preparation or execution of the will. On the contrary, Katherine’s uncontradicted affidavit evidence was that she had no involvement in Sheila’s selection of a lawyer to prepare the will, or the contents of the will.[7]
Key Takeaways
It is not uncommon for a relative who feels they should have been included in a will to attempt a will challenge. However, in order to be successful, there needs to be sufficient evidence at the outset. Graham is an example of this bar not being met.
From a planning perspective, testators who plan to leave out certain members of the family should contemplate the potential that the excluded person could make a claim against their estate. Though always a personal and sensitive topic, it is important to discuss these issues with an estate planning lawyer who can help establish evidence of the testator’s intention and capacity. For instance, an experienced estate planning lawyer will make note of the presence, or lack thereof, of suspicious circumstances. In addition, one cannot overemphasize the importance of ensuring that a will complies with the requisite formalities. Although there is always a chance that a disgruntled friend or family member may challenge the validity of the will, whether or not that challenge is successful will depend on the evidence.
If you have any questions, need advice or assistance with an estate plan or a contentious succession, please contact a member of Miller Thomson’s Private Client Services group.
[1] Graham v. McNally Estate and Blais, 2024 ONSC 4006 [Graham].
[2] R.R.O. 1990, Reg 194.
[3] Graham, supra note 1 at para 52.
[4] Young v. Prychitko et al., 2022 ONSC 1502 at para 20.
[5] Graham, supra note 1 at para 71.
[6] Vout v. Hay, 1995 CanLII 105, [1995] 2 S.C.R. 876 at para 26.
[7] Graham, supra note 1 at para 93.
