The commonest reason clients contact me – something unfair happened

Imagine your loved one – grandparent, parent, or great-uncle for example – passed away after a long, productive life where, as a result of their hard work, they accumulated lands out in the country that they wanted you to have.  They discussed how that special meadow by your childhood swing set would be yours, along with the cabin and yard.

Now imagine the peace you picture in the summers, with your own two young children in the picture now, enjoying as you did the singing birds and lazy afternoons playing horseshoes.

You knew you would have to share this dream-come-true with your sister, of course, which despite her always having been domineering and stubborn to get her way, you were sure you could work out a schedule.

She called you right after the funeral. You’ll always remember that the first thing she discussed was property (the farthest-flung thing from your mind in that moment).  She is the only “heir” to the property, and she is the executor.  You couldn’t believe your ears.  Come again?

What did I do wrong?  What caused this change in your loved one’s wishes?  And especially while they were in the hospice, vulnerable and undergoing the final effort to treat their illness.   The truth is, it could be simply a change in their desire that they didn’t discuss with you, or it could indeed be something more suspicious.

In my practice, I receive a disproportionate number of calls that began this way (or some variation of it), either on a family farm, holiday property, family business, or the house in town as well.  So, I have also observed in a great number of cases, that there indeed is something suspicious or even fraudulent that has happened.

What options do have to address this sort of situation?  Not all cases call for a full blown Will challenge, but I will outline that option in this article, using a recent Alberta Court of Appeal case as guidance.

How do you advance the Will challenge?

Although there are infinite intricacies to each specific case, which I study with my clients before recommending or proceeding with a Will challenge, I will outline common details of our first consultation, then a sort of legal ‘litmus test’ for whether there may be enough background information to consider challenging the Will.

Our first consultation: what to expect

First, I gather a detailed factual background, and your impressions as my client as to what happened. Some key things to discuss with me include (and are never limited to):

• Prior Wills: do you know what the prior Will(s) said?  If you do not, and have no way to confirm before considering the Will challenge, you will want to take steps to obtain a copy (including potentially an application to the court for a disclosure order). If you are successful in challenging the last Will, it remains possible that the immediately previous Will comes into effect (if it was not otherwise revoked by a valid signed document)
• Health and Mental Wellness: How was your loved one’s health around the time of the Will? (i.e. the last 3 years, and then 3-6 months before the Will, are two good periods to look at). Were there any doctor’s notes discussing their capacity or formal capacity assessments or declarations? Were they diagnosed with any illnesses (especially dementia)? Was their Power of Attorney (financial decision document) or Personal Directive (medical decision document) enacted? Are you willing to incur the time and cost to obtain fulsome medical records and have them examined by an independent capacity expert?
• Age: How old were they?  Statistically, after the age of 80, cases of dementia increase dramatically (dementia has a very wide range of effect on mental capacity, so a diagnosis of dementia does not necessarily mean they lacked capacity to make a Will).
• Observations: What observations can you share, and in an affidavit if warranted, about the testator’s mental capacity in their final 3 years, 6 months, and 3 months? Will others corroborate these issues, with personal observations of their own?
• Family history: What is the family tree? Who is where on it, and what are their roles in the testator’s life? How proximate was each person to the testator? Specifically, was there any history of the beneficiary-of-concern mistreating or taking advantage of the testator?  What was that individual’s objective behavior like throughout life, to this point?
• Influence: Did the concerning beneficiary hold physical, practical, or psychological influence over the testator? Did they exercise that influence unfairly, to gain an advantage?  What evidence could you present in court, under oath, on this topic?
• Property and Accounts: Do you know what existed before they passed away? This will be relevant to a number of issues we will discuss together, including getting a proper inventory and financial statement of the Estate through the legal process if required. It is important as well to know, so that you are aware of the practical implications of proceeding (we discuss a budget for legal fees up front).  It will also be legally important to any litigation issues, including the legal test for testamentary capacity, to know the scope and nature of the property that should be in the Estate.

Legal ingredients for the Will challenge

It’s not enough, to show that the Will was simply ‘different’ than expected.  Wills can, and often do, vary for numerous reasons between one Will and the next.  And, unless you are a specific defined type of “family member” in the Wills and Succession Act being either a child, spouse, or a dependent, then the testator does enjoy fairly wide discretion in making their Will.  For dependent claims, see our article, Got Dependents?

If you’re an adult independent relative or friend, then your claims against the Will are limited to some specific legal challenges, such as mental incapacity, undue influence, or equitable claims based on the circumstances of your relationship with your loved one (for example, promises they made you which you relied upon).

I will focus on the mental capacity and undue influence aspects. Alberta law requires that you show some “suspicious circumstances” around the Will and when and how it was made, to present a strong legal challenge. If suspicious circumstances exist, we can stop probate with a properly prepared court filing, until we can investigate the background, finances, and circumstances for the Will challenge hearing itself.

In the McKay v. Olsen case, the Alberta Court of Appeal offered guidance to Estate Litigation counsel, for the threshold questions to confirm, for a Will challenge to continue to a trial if the proponent of the Will (typically the executor and sometimes also the opposing beneficiary) feels the Will is valid.

Legally, to proceed to trial or survive a summary judgment motion, the challenging party may present evidence on these points (this list is not exhaustive and other circumstances can be relevant to a Will challenge):

• A medical history of diminished mental capacity (this can also include urinary tract infections which, in the elderly can cause delirium and lack of capacity to make decisions).
• Beneficiary was involved the Will coming into existence (for example, arranging the lawyer for them, or taking them there to sign the Will, or paying the lawyer’s bill to make the Will, or prepared notes for the testator on what to include in their Will).
• Significant changes in the new Will, from prior Wills.
• The Will makes little testamentary sense (it’s not a ‘natural’ or typical gifting structure or benefits unusual beneficiaries).

Wills are, in general, presumed to be valid, which puts an initial onus on a challenger to show suspicious circumstances that could ultimately lead to a judge invalidating it. You will need to present strong evidence, which can be corroborated by other witnesses, documents, or circumstances.

Although experts are not crucial to succeeding in many Will challenges and lay-witness observations and the drafting lawyer’s evidence are often pivotal, independent experts can provide helpful insights.  This is especially more so when the expert was able to assess the testator before the Will was made.  This can be a helpful defence strategy for the side upholding the Will, as well as for the side challenging it, if feasible.

The Court of Appeal in that case found the evidence that the challenging party presented to be weak on the question of capacity and nil on whether there was any undue influence. Further, their case lacked robust support for the expert’s opinion.  The Court overturned the lower court and dismissed the Will challenge.

How to prepare your case

Knowing what you have to prove is only half the battle, if even half.  It is absolutely crucial that you receive proper experienced legal support at the earliest possible stage of feeling concerned about the situation unfolding.

Our experienced Estate Litigation counsel are well-versed in the strategic nuances, tailored to your case. You can expect frank, comprehensive, and accountable advice your Kormos LLP team.