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Invalid BC Wills and Testamentary Capacity

The best estate litigation lawyers know Invalid BC Wills and Testamentary Capacity issues are a hot topic in Vancouver and BC estate litigation dispute cases. The best estate litigation lawyers know that recent massive gains on stocks and real estate, will cause elderly parents to transfer more wealth than ever before. What happens when a parent is elderly and confused and unable to appreciate the effect of a Will they sign?

MacLean Law has one of the largest English and Mandarin and Cantonese fluent family law and estate departments in Canada. Our lawyers handle Invalid BC Wills and Testamentary Capacity disputes from our offices across BC.

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Invalid BC Wills and Testamentary Capacity
Invalid BC Wills and Testamentary Capacity lawyer Fraser MacLean

Invalid BC Wills and Testamentary Capacity

In today’s blog by Fraser MacLean, he highlights a recent Supreme Court of British Columbia decision Jung Estate v. Jung Estate, 2022 BCSC 1298.

This judgment covers important factors that determine whether a will is valid including testamentary capacity, knowledge and approval of its contents and undue influence. This case held the Will was invalid for lack of testamentary capacity even though no undue influence was proven

If you have questions around the creation or status of your will, reach out to MacLean Law today. Our dedicated team can help you set up an initial consultation with one of British Columbia’s premier Estate Litigation & Family Law firms. 

Invalid BC Wills and Testamentary Capacity

The Justice in Jung explored whether there are suspicious circumstances surrounding the creation and execution of the Will involving two brothers, in particular:

  •  Did Ms. Jung have testamentary capacity at the time she made the Will?
  •  Did Ms. Jung know and approved the contents of the Will?
  •  Did Jerry unduly influence Ms. Jung to make the Will?

Here are the key facts:

[1]The plaintiff alleges that the will of the late Rose Jung, which she executed on July 17, 2017 (the “Will”), shortly before her death on August 16, 2017, is invalid. She argues there were suspicious circumstances surrounding the Will’s creation and execution, and she says Ms. Jung did not have the requisite testamentary capacity to execute the Will, did not know and appreciate the contents of the Will, and was unduly influenced by her son, the defendant, in the making of the Will. The defendant takes the position that he has proven the Will in solemn form of law and in his counterclaim seeks a declaration to that effect.

[2]Ms. Jung was predeceased by her husband, and at the time of her death, left their two adult sons surviving her:  the plaintiff, Steven Jung, who was 62 at the time of her death, and the defendant, Jerry Jung, who was 67. I will refer to Steven and Jerry by their first names, intending no disrespect. At the time Ms. Jung executed the Will she owned a property located at 2946 East 8th Avenue, Vancouver, BC (the “Property”), which was her only asset of significance. Since shortly before the death of Ms. Jung Jerry has been living at the Property, and he continues to do so.

[3]Steven commenced this action after his mother’s death, but died on January 6, 2021. His wife, Wendy Lee, is the executor of his estate and in that capacity is now the plaintiff in this action.

THE PROBLEM: If one brother got the entire house under challenged Will nothing was left for his brother!

[4]In the Will, Ms. Jung made a specific bequest of the Property to Jerry, and gave Steven the residue of her estate. While probate for Ms. Jung’s estate has not yet been granted, after the specific gift of the Property to Jerry is made, and after payment of the estate expenses, the parties agree that the residue of the estate will be fully spent and there will be no funds to be distributed to Steven’s estate.

[5]This proceeding is to determine the validity of the Will, and not to determine whether Ms. Jung’s reasons for effectively disinheriting one of her sons were valid and rational. While there may be a future proceeding to determine whether the distribution as set out in the Will provides adequate, just and equitable maintenance and support for both of her sons (pursuant to s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA]), that is not an issue on this proceeding.

What Did The Will Dispute Judge Decide?

The most frequently quoted test for testamentary capacity is the English decision of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 567, which remains relevant today. To prove that a will-maker had testamentary capacity, the proponent of the will must lead evidence that establishes that the will-maker:

a)    understood the nature of the act of making a will and its effects;

b)    understood the extent of the property of which he or she is disposing;

c)    was able to comprehend and appreciate the claims to which he or she ought to give effect; and

d)    had no disorder of the mind or insane delusion that influenced his or her making of the will.

[158]    Justice Francis recently explained that knowledge and approval requires more than the will-maker “simply knowing the contents of the will” but requires that the will-maker is “aware of the magnitude of the residue of her estate and must ‘appreciate the effect’ of the disposition of her estate”: Geluch v. Geluch Estate, 2019 BCSC 2203 at para. 127; citing Russell v. Fraser (1980), 118 D.L.R. (3d) 733 (B.C.C.A.) at para. 12.

[The brother receiving the whole house}, Jerry has not proven on a balance of probabilities that Ms. Jung had the necessary testamentary capacity to understand the implications of the ultimate scheme of gifting established in the Will. In addition, there is a lack of evidence that Ms. Jung ever communicated to Mr. Micner that she resiled from her position at their May 18, 2017 meeting that she felt Steven should get something or that there was any discussion as to the proportionate share the two sons should get, aside from the mention at that meeting of “¾ – ¼”. Rather, the Draft Will Mr. Micner then brought to their next meeting provided that the Property would be gifted to Jerry, and the residue would be gifted to Steven. There were no discussions with Ms. Jung of the consequences of this proposed distribution, nor any of the impact on Steven’s proportionate share as a result of this proposed distribution. Most importantly, there was no evidence that Ms. Jung was aware that such a distribution would effectively disinherit Steven.

[162]    Notwithstanding Ms. Jung wanted to gift the Property to Jerry, I find she was not able to appreciate the impact of that gift on the residue of her estate, and so she did not appreciate the effect of such a disposition upon her bequest to Steven. I find that Ms. Jung did not have knowledge and approval of the Will and as such, the Will is not valid.


[177]    Accordingly, I find that the Will is invalid and make a declaration to that effect, and so the 2001 Will and the 2002 Codicil govern the distribution of Ms. Jung’s estate. I grant the relief sought by the plaintiff, and I dismiss the counterclaim brought by Jerry in his capacity as the named executor of the Will.

TAKEAWAY – Hire The Best Estate Litigation Lawyers 1 877 602 9900

Making A will is a serious decision and it must be made with capacity and free from undue influence. Further, unfair Wills can be challenged on legal and moral grounds.

Vancouver Invalid BC Wills and Testamentary Capacity Lawyers 1 877 602 9900

If you have questions around the creation or status of your will, reach out to MacLean Law today. Our dedicated team can help you set up an initial consultation with one of British Columbia’s premier Estate Litigation & Family Law firms.