A good Vancouver Will Dispute Lawyer helps ensure that a Will maker has the ability to properly instruct a lawyer on how they wish their estate to be divided upon their death. To be able to prepare a valid Will the testator (person making the Will):
- Must understand they are making a Will and the impact of their Will;
- Must understand what they are disposing of and allocating to beneficiaries; and
- Must understand the duties and claims to which they should respect in their Will.
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Contact a Vancouver Will Dispute Lawyer at MacLean Law at any of our 6 offices across Bc and in Calgary Alberta. We have offices in Vancouver, Surrey, Kelowna, Fort St John, Richmond and Calgary Alberta.
When there are problems with any of the three criteria above, a skilled Vancouver Will Dispute Lawyer, like one of the estate dispute lawyers at MacLean Law, will assist our clients in these emotional and troubling estate disputes. The value of disputed estates in Vancouver and across BC has surged and these often heartbreaking disputes can now involve millions of dollars. Our Vancouver Will Dispute Lawyers provide guidance to beneficiaries and loved ones who may be concerned an end run is being made around their legitimate claims in favour of unscrupulous spouses who may be seeking to cash in on predatory marriages. Sometimes there is no malice but the person who is preparing a Will simply is in no mental state to do so and may also be are overly dependent on those close to them.
Vancouver Will Dispute Lawyer 1-877-602-9900
The recent case of Devore-Thompson v. Poulain dealt with a woman who was too incapacitated to even understand her new marriage and to prepare a proper Will. Madam Justice Griffin found that both of her 2007 and 2009 Wills were invalid due to lack of testamentary capacity. The case provides a nice explanation that any top Vancouver Will Dispute Lawyer can now use to explain the rules to a person looking to protect a loved one and ensure a proper Will or division of the estate of the deceased occurs:
Testamentary Capacity
[51] The law of testamentary capacity has old roots. The case of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 565, provided an early and enduring formulation of testamentary capacity:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[52] A thorough review of the principles regarding testamentary capacity was set out by Ballance J. in Laszlo v. Lawton, 2013 BCSC 305 at paras. 185-199 [Laszlo].
[53] In Laszlo at para. 188, the Court adopted the modern restatement of the test set out in Re Schwartz (1970), 10 D.L.R. (3d) 15 (Ont. C.A.) at 32, Laskin J.A., dissenting on other grounds:
The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property.
[54] As the authorities reviewed by Ballance J. in Laszlo make clear and as is especially relevant to keep in mind in this case, while a medical condition can affect testamentary capacity, capacity is a legal construct, not a medical diagnosis. Further, the effects of a medical condition on capacity can vary over time.
Vancouver Will Dispute Lawyer Explains Onus
The court looked at the evidence of medical witnesses, documentary evidence as well as evidence from laypersons who knew her well to conclude that a sharp decline had occurred in the Will maker’s mental capacity in the years when the two Wills were made. The court concluded the Will maker did not meet the test for making a valid Will:
Onuses of Proof
[55] The law presumes an adult has capacity unless the contrary is established: see Adult Guardianship Act, R.S.B.C. 1996, c. 6, s. 3.
[56] As a matter of her position as plaintiff, Ms. Devore-Thompson has the onus of establishing that Ms. Walker did not have the capacity to marry.
[57] In the testamentary context, the existence of the presumption of capacity in any given case depends on the circumstances surrounding the will’s execution. The propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity. The propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the proper formalities after having been read over by or to 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: see Vout v. Hay, [1995] 2 S.C.R. 876 at para. 26 [Vout].
[58] However, where suspicious circumstances are present, the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. If the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity: see Vout at para. 27.
[59] As noted in Laszlo at paras. 202-207, suspicious circumstances include those circumstances that tend to call into question the capacity or free will of a testator. These are not necessarily sinister, although they can be. Such circumstances could merely be evidence that a testator’s doctor had deemed him or her to be no longer capable of managing his or her affairs and as suffering from dementia.
[365] There is no suggestion of any undue influence at the time of the 2007 Will but there is evidence calling into question her capacity.
[371] On balance, given all of the evidence, I conclude that Ms. Walker did not have capacity to execute the 2007 Will. On the balance of probabilities, I find that Ms. Walker did not have the capacity to understand the extent of her estate, who the potential beneficiaries were, or how she might apportion the estate as between them.
Vancouver Will Dispute Lawyer Explains End Result
[373] Ms. Walker did not have the capacity to marry Mr. Poulain. Their Marriage is void ab initio.
[374] Ms. Walker did not have the capacity to make the 2009 Will.
[375] Ms. Walker did not have the capacity to make the 2007 Will.
If you have a Will dispute and have doubts about testamentary capacity and improper influence from others over a loved one call a skilled Vancouver Will dispute lawyer at MacLean Law today. Call us toll-free at 1-877-602-9900.
