Unfortunately, estate disputes are uncommon and often result in divided families and hurt feelings. Family members who have not been included as a beneficiary in a will may consider this an unfair outcome and may seek to rectify the situation in their favor.

A will can be challenged in court on a variety of grounds. Two of these grounds, which are commonly argued together in a will challenge are that the willmaker (testator) did not understand what they were doing when making the will, and that someone exerted undue influence over them, therefore, the will does not represent their true intentions. These concerns may be heightened if the will was prepared in suspicious circumstances.

This article considers challenging a will which was prepared in suspicious circumstances, namely lack of capacity and undue influence. It also looks at a recent decision of the Court of Appeal for Ontario, in which a daughter left out of her mother’s will brought proceedings against her sister contending that the will was invalid. 

What is the impact of suspicious circumstances?

If a will was executed in conformity with the formal requirements and the testator approved its contents, a presumption arises that the testator had the necessary capacity to execute the will. It is up to the person who challenges the will to present evidence to the contrary.

However, if this person introduces evidence that raises suspicious circumstances, the burden shifts to the person seeking to uphold the will to prove that the testator approved of the will and had appropriate capacity at the time the will was signed.

Suspicious circumstances may mean a:

• those surrounding the preparation of the will; 
• events tending to call into question the capacity of the testator; or 
• circumstances tending to show that acts of coercion or fraud overborne the testator’s free will.

Testamentary capacity requires a sound disposing mind

In order to make a valid will, the testator needs to possess testamentary capacity or what the courts describe as a sound disposing mind. They need to:

• understand the impact of a will;
• recollect the extent of their property;
• know what property their will is going to distribute;
• recall the people that might be expected to benefit; and 
• understand the nature of the claims that could be made by the persons they are excluding.

Undue influence arises if the will was the product of coercion

A will can also be found invalid if the testator was under undue influence at the time of its execution. If the person challenging the will can show that the will was the outcome of someone else’s dominance and control over the testator, such that it was the product of coercion and did not represent what the testator really wanted, it is possible the court may find the will invalid on account of undue influence.

Testator’s will left everything to one of her three children

In Di Nunzio v Di Nunzio, the testator died at age 80, leaving behind three children. Her will named her daughter Teresa as the sole trustee and beneficiary, and expressly disinherited her other two children. 

Unfortunately, the testator had significant health challenges later in life. Teresa and her son Robert cared for her at home, with assistance from personal support workers. She was alert though, instructing a real estate agent to sell her home.

At the same time, the testator instructed a lawyer to prepare a new will. The lawyer had no capacity concerns, and they discussed the consequences of leaving all her property to Teresa. According to the lawyer, the testator said her other daughter Lucia had previous issues with money and drugs, and that Teresa would continue to take care of Robert.

Lucia challenged the will following her mother’s death. She claimed that her mother’s health issues, medication side effects, and Teresa’s control over her financial and medical needs constituted suspicious circumstances.

Application judge found no suspicious circumstances

The application judge of the Ontario Superior Court of Justice found that there was no evidence that the testator’s treatment or pain medication had an impact on her mental abilities. Evidence from the real estate agent and lawyer supported this finding. The judge decided that the testator’s intentions were clear and firm, which was not suspicious given the mother’s tumultuous relationship with Lucia.

Lucia presented evidence from a handwriting expert, who opined that one of the testator’s signatures on the will was simulated or made using a “guided hand.” The judge refused to accept this as evidence because the expert did not know the cause of the testator’s shaky handwriting.

Teresa’s involvement as her mother’s principal caregiver meant that she was necessarily involved in her care and finances. The judge found that this did not establish undue influence in the absence of any other evidence. 

The Court found that Lucia presented no evidence of suspicious circumstances involved in the preparation of her mother’s will. However, Lucia appealed the decision.

Court of Appeal agreed, upholding the will 

The Court of Appeal agreed with the application judge that there was ample evidence to support the finding that the testator had the requisite testamentary capacity, was not under any influence and there were no suspicious circumstances surrounding the execution of the will. 

The Court of Appeal noted that the testator had the firm intention to exclude Lucia and Robert because of rational concerns, namely that Lucia would “run through the money” and that Teresa would look after her siblings. As a result, the Court dismissed Lucia’s appeal.

Contact Campbell Litigation for Assistance with Inheritance Disputes in Waterloo, Kitchener and the Surrounding Area

Estate disputes can be complex and highly emotional. Campbell Litigation, led by litigator Richard Campbell, can help you move forward. Our firm represents clients in various disputes resulting in estate litigation, including challenging wills, applications to remove executors or trustees, and claims by dependents for support from an estate. To arrange a confidential consultation with a member of our team, please call us at 519-886-1204 or contact us online.