For estate litigation lawyers, the 3 main ways of challenging, contesting or disputing a will in BC are:
If a person successfully challenges, contests or disputes the will by proving or disproving any one of these, the will is set aside. It will not be admitted to probate and a previous will may come into effect or the will-maker’s assets may pass as if there was no will.
The court’s approach to these issues begins with the presumptions set out in the 1995 Supreme Court of Canada decision Vout v. Hay, “Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by 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.”
Taking into account the basic presumptions, estate litigation lawyers then look at whether there are any “suspicious circumstance” relating to:
Examples of suspicious circumstances include control by family members, diseases such as dementia, a beneficiary telling the lawyer or notary what to put into the will and radically changed dispositions.
If one or more of these circumstances are present, then the presumption that “the testator knew and approved of the contents and have the necessary testamentary capacity” fails. Then, someone has to prove the will-maker knew and approved the contents and had testamentary capacity. The person who must prove each of these is not always the same person. The onus of proof for each of them is:
Judge Sopinka in Vout v. Hay confirmed that the standard of proof remains a balance of probabilities even when there are suspicious circumstances, albeit the evidence must be scrutinized in accordance with the gravity of the suspicion.
1. Formalities, Knowledge and Approval
The formalities of a valid will are set out in Part 4 of WESA. Section 36 sets out who can make a valid will. A person who is 16 years of age or older and who is mentally capable of doing so may make a will. Before March 31, 2014, a person had to be 19 years old to make a valid will.
Section 37 of WESA sets out how to make a valid will. A valid will must be in writing, signed at the end by the will-maker in the presence of 2 or more witnesses present at the same time, and signed by 2 or more of the witnesses in the presence of the will-maker.
Section 37 also sets out a way to make an otherwise invalid will a valid will. The most interesting of these is by court order pursuant to Section 58. Section 58 gives the court the discretion to order a record or document to be effective as the will or part of the will of a deceased even though it does not comply with Section 37.
What is even more interesting is that a record includes data that is recorded or stored electronically, can be read by a person and is capable of reproduction in a visible form. This likely means that even emails and text messages could be a will or part of a well if “circumstances require”.
Unless someone decides to challenge the will, contest the will or dispute the will, it is only on rare occasions that the will must be proved in solemn form including compliance with the formalities. Depending on the circumstances, challenging, contesting or disputing a will in this way can be done either by way of petition with affidavit evidence or a trial with oral evidence.
2. Mental capacity
If the presumption fails because of suspicious circumstances, then the executor must prove the mental capacity or testamentary capacity of the testator or will-maker. Mental capacity has been described as a “disposing mind and memory”.
The 1944 Supreme Court of Canada decision Leger v. Poirier  SCR 152 looked at the will of a 79 year-old New Brunswick widow. She was described as a vigorous and capable woman who had continued her husband’s business for almost 20 years after his death. Her health began to fail rapidly at the time of the will which was prepared 3 months before her death. The evidence was that her son not only lived in her home but controlled her and expressed strong views about the dispositions. A priest drew the will which was challenged on the grounds of the incompetency of the widow and undue influence by the son. The Supreme Court of Canada held that the propounder of the will did not prove competency or testamentary capacity and so the will was set aside.
Mr. Justice Rand said, “But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. 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, revocation of existing dispositions, and the like; this has been recognized in many cases”
It is significant that “revocation of existing dispositions” is an essential element of will-making. This is a relatively common occurrence in wills that are challenged where as a parent ages and care needs increase, one child often ends up bearing the work. Longstanding wills with an equal distribution among children are changed to disproportionately benefit the child doing the work. This can be attributed to many different factors including gratitude, influence and vulnerability.
Mr. Justice Rand then goes on to quote from a number of other decisions, Marsh v. Tyrrell, Marquess of Winnchester’s Case, Murphy v. Lamphier and Menzies v. White:
Even back in 1944, Leger sets out that once testamentary autonomy is called into question, the onus lies on the executor to positively affirm the testamentary capacity. Some of the checklists for wills lawyers are to satisfy them that the will-maker has mental capacity to make a will.
There are other cases which have set out slightly different tests which have been relied upon by our courts in challenging, contesting or disputing a will.
3. Undue influence
Back in 1991, the Supreme Court of Canada heard a trust case about 3 brothers and a sister from Alberta. Geffen v. Goodman set out the two sometimes overlapping classes of undue influence which can be used to wholly set aside an inter vivos transfer.
Fundamentally, the first class of undue influence cases requires bad, evil or reprehensible behaviour. The second class of undue influence cases does not. As the British Columbia Court of Appeal said in Ogilvie v. Graham, “The second class of undue influence does not depend on proof of reprehensible conduct. It affects those who may have acted in the sincere belief of their honesty.”
Importantly, the second class of undue influence cases set out in Geffen did not apply to contested wills in British Columbia until March 31, 2014. Geffen was not a case of a challenged will or disputed will, but of a trust. That all changed on March 31, 2014.
In 2014, the British Columbia Legislature changed and even expanded the presumption of undue influence cases to now apply to wills. In the Wills and Estate Succession Act:
Section 52 WESA “In a proceeding, if a person claims that a will or any provision of it resulted from another person
(b) being in a position where the potential for dependence or domination of the will-maker was present, and
(c) 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. (Emphasis added)
This change will effectively import all the law relating to the undue influence presumption set out in Geffen (including the hundreds of reported decisions which considered Geffen) into wills that can now be contested, challenged or disputed not on the basis of bad behaviour, but on the basis of relationship.
As set out in Ogilvie, this will not require reprehensible conduct. Once the person challenging, contesting or disputing a will on the basis of undue influence proves on a balance of probabilities that, “the other person was in a position where the potential for dependence or domination of the will-maker was present”, the onus will shift to the recipient to rebut the presumption by proving no undue influence.
Beyond that, it is likely that the change in wording from Geffen’s “potential for domination” to the wording in Section 52 “potential for dependence or domination” has expanded the number of situations where the presumption will come into play.
This may be a good thing because as the court in Geffen said, “In the case of the former it seems to make sense that the process leading up to the gifting should be subject to judicial scrutiny because there is something so completely repugnant about the judicial enforcement of coerced or fraudulently induced generosity.”
Also in Geffen the court said, “It seems to me rather that when one speaks of influence one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. // To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.”
While Geffen acknowledged that influence is not limited to relationships of trust or confidence, Section 52 of WESA expands upon that. The Section 52 wording “potential for dependence or domination” seems crafted to address situations involving caregivers and relatives taking care of older persons and parents. It is likely a truism that as one grows older, one grows more dependent and more vulnerable.
The Bible says, “Truly, truly, I say to you, when you were young, you used to dress yourself and walk wherever you wanted, but when you are old, you will stretch out your hands, and another will dress you and carry you where you do not want to go,” John 21:18 English Standard Version.
The Geffen decision will continue to be instructive to Vancouver estate lawyers and British Columbia estate lawyers in establishing the Section 52 requirement that, “the potential for dependence or domination of the will-maker was present’. In Geffen, two judges of the Supreme Court of Canada disagreed with two other judges of the same court as to whether the presumption was triggered.
Judges Wilson and Corey JJ found that there was a potential for the brothers to exercise a persuasive influence over their sister in how she disposed of the house she received from her mother, and therefore the presumption was triggered.
Judges La Forest and McLachlin JJ found that there was no potential for the brothers to exercise a persuasive influence over their sister and how she disposed of the house she received from her mother, and therefore the presumption was not triggered.
Judges Wilson and Corey JJ seem to lean toward an interpretation of potential as possible domination. Judges La Forest and McLachlin JJ seem to lean toward an interpretation of potential as actual domination. The addition of the word “present” in Section 52 may suggest the latter interpretation will be preferred by British Columbia courts.
Even though in this estate dispute, all of the judges agreed there was no undue influence, these differing views show the importance of proving the presence of the potential for dependence or domination.
In the 1995 Supreme Court of Canada decision in Vout v. Hay, Judge Sopinka noted that, “It might have been simpler to apply the same principles to the issue of fraud and undue influence so as to cast the legal burden onto the propounder in the presence of suspicious circumstances to that issue.”
The British Columbia legislature has taken a large step in that direction based on Section 52 of WESA. While those situations where the potential for dependence or domination still require proof of undue influence, the majority of cases by far are those situations of covered by the presumption.
For British Columbia estate litigation lawyers involved in challenging, contesting or disputing a will in BC, these new considerations will affect their advice and what they must set out in the pleadings to be filed in court. These new considerations likely affect the standard of legal advice to be given to older dependent persons which in a challenged will, contested will or disputed will, will be scrutinized by the lawyers and court.