Challenging a Will – Part One

 “If a man dies and leaves his estate in an uncertain condition, the lawyers become his heirs.”
          Edgar Watson Howe –

One of the wisest things that a person can do for his or her family is to prepare a Will. A well-prepared Will, will provide clear instructions to an Executor to administer and ultimately distribute the testator’s Estate.   But having a Will does not mean that there will never be a dispute about the Will. Hopefully we will give you some tips on how you can help your clients avoid potential problems. The fact patterns are taken from a compilation of cases. The names have been changed to protect the innocent. 

The Facts

Joe, a 65 years old multi-millionaire, finds himself alone after his wife of 30 years leaves him for a younger, more handsome and more attentive man. After the divorce, Joe wisely prepares a new Will in which he disinherits his two children and he divides his Estate equally between his three grandchildren and his favourite golf course.

Joe meets Lucy, a young, attractive and more attentive golf pro. A year after the divorce, Joe marries Lucy and expects to live happily ever after. Unfortunately, Joe’s heart has other ideas. Joe collapses and dies on the 16th tee after shooting a truly remarkable drive 280 yards straight down the centre of the fairway.
1. What happens to Joe’s Estate?

Joe was wise to make a Will following his divorce from his first wife. But when Joe remarried his existing Will was revoked by virtue of section 14 of the Wills Act. As result of that automatic revocation, Joe’s Estate will be divided amongst Lucy and Joe’s children in accordance with the provisions of the Estate Administration Act. Neither Joe’s grandchildren nor his beloved golf course will receive any share of his Estate. 

The Solution
Joe needed to make a new Will either in contemplation of his marriage to Lucy or a new Will as soon as married Lucy.
2.   Gift to an Attesting Witness

Let’s assume that Joe made a new Will after he married Lucy in which he names his favourite grandson Joe Jr. II as a 25% beneficiary of his Estate. Joe Jr. II’s wife witnessed the Will. When Joe dies, Joe Jr. II gets nothing because section 11 of the Wills Act provides that if a beneficiary or the spouse of a beneficiary witnesses a Will, that bequest to the beneficiary is void. Joe Jr. II’s share falls into the residue of the Estate. The Estate will be divided among the remaining beneficiaries.

The Solution
Never let a beneficiary or a spouse of a beneficiary witness the Will. Joe can sue the lawyer as a disappointed beneficiary.
3. Gift to Former Spouse

Section 16 of the Wills Act provides that if a testator obtains an order of judicial separation or has his marriage terminated by a decree absolute of divorce then, unless a contrary intention appears in the Will, the gift to the spouse is revoked and Will takes affect as if the spouse had died before the testator.

If Joe doesn’t make a new Will following the separation from his first wife and if Joe hasn’t remarried, his Will has not been revoked. Even though Joe and his first wife were separated she will be entitled to whatever was given to her in the Will.

The Solution
Make a new Will after you separate.
4. Undue Influence and Lack of Capacity

Undue influence and lack of capacity are two separate but intertwined concepts. From a practical perspective, family members may be prepared to overlook issues of a testator’s capacity in a Will going to probate, if the Will is perceived by family members to treat everybody fairly. The cases that cause the problems are those in which beneficiaries or people who think they should be beneficiaries perceive that they have been unfairly treated. This leads them to look for a means of attacking the Will. 

“They all laid their heads together like many lawyers when they are gettin’ ready to prove that man’s heirs ain’t got any right to his property.”

– Mark Twain –
The Facts – Part II

If we change the facts scenario again and look twenty years down the road, Joe is 85. The bloom has faded from his second marriage to Lucy. She is now spending a lot of time at the golf course with the boys. Joe is left at home alone with his trusted, long-time housekeeper and man-servant George. Joe doesn’t get out much anymore and when he does, he is often unable to find his way home. He come to rely more and more on George to look after him. On one trip George takes Joe to George’s lawyer’s office. Joe instructs the lawyer to draft a new Will. In this Will Joe purports to revoke an earlier Will in which he left Lucy the matrimonial home valued at half a million dollars and one million dollars of his two million dollars estate. He disinherits his two children but leaves the balance of his estate, one million dollars to be divided equally between his three grandchildren and his favourite golf course. In the new Will, Joe instructs the lawyer to leave Lucy a life estate in the house but only $50,000.00 cash. He gives the balance of his estate to George. He leaves nothing to his children, nothing to his grandchildren and nothing to the golf course. 

One month after Joe makes his new Will he is admitted to an extended care unit with a diagnosis of “early senile dementia”. The nursing notes indicate that he is “forgetful” and “doesn’t always recognize his visitors”. Joe dies one year after his admission to the extended care unit. 
What Happens to Joe’s Estate

It perhaps won’t come as a surprise to you that Joe’s Will is attacked by Lucy, Joe’s children and grandchildren and the golf course even though it has been properly drafted and properly executed by Joe and two witnesses. 

The grounds for the attack are as follows:
1. George’s undue influence on Joe;
2. Joe’s lack of capacity; and
3.A Wills Variation Act application brought by Joe’s wife and children.

At trial, the Courts scrutinizes the facts to see if there is evidence of actual undue influence. The Court examines the evidence and considers whether or not George has influenced Joe to make a gift to him through manipulation, cohersion, fraud or duress. If this is a case of actual undue influence the gift to George would be set aside. The Court finds no such evidence. That does not end the investigation. The Court hears evidence and learns that in recent years Joe has become dependent on George. The Court finds a relationship of trust and confidence between George and Joe has developed. Having made that finding, the Court requires George to prove that Joe made a gift to him of his own free will without influence and after considering his obligation to other potential beneficiaries. George is unable to establish that Joe made the gift spontaneously and the Court determines that there has been an undue influence. 

The Court would set aside the gift to George but there is another issue to be dealt with. That issue requires a determination of whether or not Joe had testamentary capacity. The executor of the Estate who has brought an application for probate in solemn form to prove the Will is required to provide evidence to show that:

1.   Joe knew he was making a document that would dispose of his assets when he died; 
2. Joe, in general terms understood or recollected what property he owned; and

3.   Joe remembered the people to whom he should consider leaving his Estate so that he was able to make a rational decision with respect to prospective beneficiaries.

The Court in this case carefully scrutinized all of the evidence. The Court noted that the evidence of uninterested lay persons indicated that Joe was often unable to find his way home. The Court noted that the nurses’ notes indicated that Joe was forgetful and didn’t recognize his visitors. The Court made specific note of the absence of a capacity evaluation by a medical practitioner. Finally the Court noted that there no explanation provided by the testator either in Affidavit or letter that went with the Will explaining why Joe had disinherited his children and left so little to his wife. 

The Court determined that Joe was a victim of undue influence and also that he did not have proper testamentary capacity when he prepared his Will. The Will therefore was deemed not to have existed and the earlier Will that Joe made when he was 65 was then admitted to probate.

The Solution

Joe’s lawyer could have taken steps that may have prevented or altered the outcome of the lawsuit. His lawyer had an obligation to probe Joe’s mind to ensure that he knew that he was making a Will. He needed to ensure that Joe knew what assets he had and who his prospective beneficiaries were. Because Joe was excluding his children and leaving his wife very little he should have prepared an Affidavit or letter from his client explaining why he was doing that. The lawyer should have required Joe to be examined by a medical practitioner to determine capacity. He should have ensured that Joe was lucid when he gave his instructions.

It is important for all people who are involved in providing advice to people who are drafting Wills or estate planning that they know their client.

 Where a person wants to do something that is out of the ordinary extra care must be taken to ensure that the person who is making a Will or doing an estate plan is doing so at their own free Will with knowledge of the consequences that their decisions will have upon their death.   Next month, lawyer Joni Metherell will write about challenges to a Will brought by a spouse or children of a testator pursuant to the Wills Variation Act

“A lawyer is a learned gentleman who rescues your estate from your enemies and keeps it for himself.”
– Henry Broughman –

This article was prepared by Allan Elliott of Pushor Mitchell LLP of Kelowna, B.C.  This article is not to be taken as legal advice and readers with any particular requirements should seek legal advice from a lawyer with experience in the area of concern.

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