What happens when someone changes their will twice just before death while suffering from a fast progressing fatal illness? Testamentary capacity can be impaired at this time and there can be a danger of undue influence over the fast declining will maker raising concerns over BC testamentary capacity suspicious circumstances. Our experienced BC testamentary capacity suspicious circumstances lawyers are ready to assist you. Losing a loved one is bad enough but things can get worse if you are wrongfully left out of the Will. We have offices across BC in Vancouver, South Surrey, Fort St John and Kelowna. Call us toll free at 1-877-602-9900.
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Our Vancouver estate litigation and Vancouver unfair will lawyers note with interest the recent decision of Mr. Justice Nathan Smith on the topic of Vancouver testamentary capacity suspicious circumstances. As wealthy Vancouver landowners pass away leaving behind multimillion-dollar homes and other substantial assets, the stakes will be even higher for disappointed beneficiaries. Further, the risk of predatory relationships will only increase increasing the number and value of disputes involving BC Testamentary Capacity Suspicious Circumstances.
New Case On Testamentary Capacity Sets Rules
In dealing with a recent Vancouver BC testamentary capacity suspicious circumstances case Mr. Justice Smith found the will to be valid and free from undue influence and the will maker to be of sound mind at the time she made her Final will.
Becker v. Becker, 2016 BCSC 487 Mr. Justice Smith summarized the dispute between the person seeking to have the Will approved and the disappointed beneficiaries:
[1] Ann Andrews died at the age of 73 on February 10, 2012 — about six weeks after she was hospitalized with what proved to be an inoperable brain tumour. While in hospital, she made a new Will, and then replaced it with another Will five days later.
[2] The executor of the most recent Will seeks to prove it in solemn form, meaning that it would govern the distribution of the estate. The validity of both new Wills is challenged by the residual beneficiaries under an earlier Will executed in 2009 (the “2009 Will”). They allege that Ms. Andrews lacked testamentary capacity and that the new Wills were the result of undue influence. Those beneficiaries would still share in Ms. Andrews’s estate under the most recent Will but in smaller amounts than would be the case if the 2009 Will governs.
The Judge then went on to restate the law that applies to these type of testamentary capacity suspicious circumstances cases:
VII. THE LAW
[50] The classic, frequently quoted test for testamentary capacity comes from Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 567:
[567] … [The testator] ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
[51] The burden of proving testamentary capacity is on the party propounding the Will, but there is a presumption of capacity where the Will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the propounder to prove testamentary capacity on the balance of probabilities: Vout v. Hay, [1995] 2 S.C.R. 876.
[52] The “suspicious circumstances” must do more than create “a general miasma of suspicion”; they must create “a specific and focused suspicion that the testator may not have known and approved of the contents of the will: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).
[53] Suspicion may relate to circumstances:
- i) surrounding the preparation of the will;
- ii) tending to call into question the capacity of the testator; or
iii) tending to show that the free will of the testator was overborne by acts of coercion or fraud: Laszlo v. Lawton, 2013 BCSC 305 at para. 202.
[54] The usual civil standard of proof — namely, proof on a balance of probabilities — applies, but as a practical matter the extent of the proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case: Vout at para. 24; Laszlo at para. 205.
[55] In Laszlo at para. 207, Justice Ballance said there is no fixed checklist of circumstances that will be considered suspicious, but:
[207] … [c]ommonly 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”: Longmuir v. Holland, 2000 BCCA 53, at para. 69 [Longmuir]; Heron Estate v. Lennox, 2000 BCSC 1553 at para. 67 [Heron Estate].
[56] Ballance J. also discussed, at paras. 189 and 190, the question of timing:
[189] Timing is key. In general, the first relevant time that testators must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions: Parker v. Felgate (1883), 8 P.D. 171; Brownhill Estate (1986), 72 N.S.R. (2d) 181 (Co. Ct).
[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P. & D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Ont. Surr. Ct.); Fawson Estate, Re, 2012 NSSC 55 (N.S. S.C.); Moore v. Drummond, 2012 BCSC 1702 (B.C. S.C.) at para. 47 [Moore]; Coleman v. Coleman Estate, 2008 NSSC 396 (N.S. S.C.) [Coleman].
[57] Although suspicious circumstances may change the onus of proof in relation to testamentary capacity, that does not apply to the allegation of undue influence in this case. In Chang Estate v. Chang, 2013 BCSC 976, Justice Dardi said at paras. 34 and 35:
[34] When undue influence or fraud is alleged, the party opposing probate always bears the legal burden of proving on a balance of probabilities the affirmative defence of undue influence: Vout at para. 28. It is important to appreciate that in these circumstances, the doctrine of suspicious circumstances and the shifting of the burden of proof has no application.
[35] In order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will-maker amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s own act. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker or the mere desire of the will-maker to gratify the wishes of another, will not amount to undue influence: Maddess v. Racz, 2008 BCSC 1550 at para. 324 aff’d 2009 BCCA 539; Freeman v. Freeman (1889), 19 O.R. 141 at 155 (C. A.); Scott at para. 112.
Note The Onus Is Now Reversed Under New WESA Estate Rules!
[58] The law on this point has been changed by s. 52 of the Wills Estates and Succession Act, S.B.C. 2009, c. 13 (“Act”) which reads
52 In a proceeding, if a person claims that a will or any provision of it resulted from another person
(a) being in a position where the potential for dependence or domination of the will-maker was present, and
(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.
However, pursuant to s. 186 of the Act, that does not apply here because Ms. Andrews died before s. 52 came into force.
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