Our Vancouver Wills Dispute Lawyers handle unfair wills and wills variation disputes, testamentary capacity issues, constructive trust claims, proprietary estoppel claims and undue influence claims. The recent case of Bull Estate v Bull dealt with the test for testamentary capacity and reviewed the law of “suspicious circumstances” in a case between the executors and a disappointed beneficiary. In the end result the court upheld the Will against the claim of the son who alleged his mother did not have the mental capacity to prepare her Will. Losing a loved one is bad enough but to also be embroiled in a Vancouver Will dispute can be one of the most stressful experiences of your life. Our Vancouver Wills Dispute Lawyers help you get it resolved so all family members move on successfully.
Call us toll free at 1 877 602 9900 set up a consultation at our downtown Vancouver, Surrey, Kelowna and Fort St John or Contact us by email.
What Is The Test For Testamentary Capacity In BC?
The court reviewed the longstanding law of what level of mental competency is required by the Will maker at the time the Will is executed. Here are the key parts as summarized by our Vancouver Wills Dispute Lawyers:
[114] The test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his/her ability to manage other aspects of his/her affairs is impaired. [115] Simply having an imperfect or impaired memory does not in of itself absent testamentary capacity unless it is so great as to leave no disposing memory: Banks v. Goodfellow (1870), L.R. 5 Q.B. 549. A disposing mind and memory is “one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revoking of existing dispositions and the like …” (Moore v. Drummond, 2012 BCSC 1702 at para. 34). [116] The testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his/her property of which he/she is disposing: Allart Estate v. Allart, 2014 BCSC 2211 at para. 30; Leung at para. 27 and Laszlo v. Lawton, 2013 BCSC 305 at para. 158.
[117] Because testamentary capacity is a legal question and not a medical question, a medical opinion, although valuable and relevant, is not determinative of testamentary capacity: Leung at para. 62 and Laszlo at para. 190.
[118] A testatrix cannot be found not to have testamentary capacity simply because she chooses to leave her estate in a manner that some might think unkind: Chalmers v. Uzelac, 2004 BCCA 533 at para. 49. [119] The real question here is whether Emily’s mind and memory were sufficiently sound to enable her to appreciate the nature of the property she was bequeathing, the manner of distributing it, and the objects of her bounty: Woodward v. Grant, 2007 BCSC 1192 at para. 125.
What is the doctrine of “Suspicious Circumstances?”
[112] In support of his position, David relies on the doctrine of suspicious circumstances. The leading case is Vout v. Hay, [1995] 2 S.C.R. 876 [Vout]. Vout clarified the principles respecting the burden of proof and the considerations that govern the relationship between the doctrine of suspicious circumstances and testamentary capacity. Dardi J. summarized those considerations in Leung v. Chang, 2013 BCSC 976 at paras. 25 – 33 and I can do no better than repeat her summary, with which I agree:
[25] The Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 clarified the principles with respect to the burden of proof in litigation regarding contested wills. The Court articulated the considerations which govern the interrelation of the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.
[26] In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.
[27] In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.
[28] In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.
[29] This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances: (i) surrounding the preparation of the will; (ii) tending to call into question the capacity of the will-maker; or (iii) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.
[30] If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).
[31] In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.
[32] In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).
[33] The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207: Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.
[113] In this case David concedes that the formalities of execution as contained in the Wills Act were complied with. The plaintiff is therefore aided by the rebuttable presumption that the 2010 Will is valid. However, David argues that the evidence disclosed numerous instances of delusional comments and behaviour by Emily leading up to her signing the 2010 Will which he says amounts to “suspicious circumstances” tending to call into question her capacity.
In the end result, the judge found the mother’s mental acuity was fine and her actions shrewd. The son’s claim to set aside the Will was dismissed with costs.
These cases are emotional and complex and deadlines apply so contact our Vancouver Wills Dispute Lawyers immediately to get the guidance you need.
