Trevor Todd and Jackson Todd have over sixty years combined experience in disputing the validity of purported wills
The appellant challenged the decision of a chambers judge accepting as valid a will executed by the deceased in 2018. This will differed significantly from the deceased’s earlier will executed in 2001. The 2001 will left the residue of the estate equally to the deceased’s 18 nieces and nephews, such that each would receive around $275,000.
Under the 2018 will, 14 nieces and nephews received only $5,000 each, while the respondent executor who held power of attorney and her three siblings would each receive close to $1.2 million.
The Appeal Court allowed the appeal finding that the judge failed to grapple with evidence of suspicious circumstances, including the respondent’s role in helping to prepare a will that significantly benefited her and her siblings. This evidence negated the presumption of validity and shifted the burden to the respondent to prove testamentary capacity, knowledge and approval.
The evidence relied on by the judge was not capable of establishing that the deceased understood the value of her estate and the magnitude of the residue. The 2018 will is therefore not valid and the estate is to be distributed according to the 2001 will.
The notary took instructions from the deceased’s power of attorney and prepared the 2028 will based on those instructions. She did not discuss or verify the instructions with the 92 year old testator.
THE LAW
The appeal court cited Leung v. Chang, 2013 BCSC 976:
[26] In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.
[27] In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.
[28] In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.
[29] This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:
(i) surrounding the preparation of the will;
(ii) tending to call into question the capacity of the will-maker; or
(iii) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.
[30] If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).
[Emphasis added.]
[17] Although the judge below correctly identified these legal principles, in my respectful view he erred in their application—at least in part because he blended his assessment of undue influence, suspicious circumstances and capacity, observing that the issues “are interrelated”: at para. 16. That approach is to be avoided. The issues should be addressed step-by-step, in keeping with the shifting burden of proof: Laszlo v. Lawton, 2013 BCSC 305 at paras. 200–207; Geluch v. Geluch Estate, 2019 BCSC 2203 at paras. 110–115.
In Lazlo v Lawton the court stated:
[207] Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly 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) …
[29] In Harmes v. Hinkson, [1946] 3 D.L.R. 497 at 509, 1946 CanLII 298 (U.K P.C), the Judicial Committee of the Privy Council, citing Barry v. Butlin (1838), 2 Moo. P.C. 480, 12 E.R. 1089, put it this way:
…[I]f a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.
The appeal court found five circumstatnces where the tril judge failed to give proper consieration to sususpiciousmcircumstances:
Laszlo:
[207] Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly 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) …
[Emphasis added.]
[29] In Harmes v. Hinkson, [1946] 3 D.L.R. 497 at 509, 1946 CanLII 298 (U.K P.C), the Judicial Committee of the Privy Council, citing Barry v. Butlin (1838), 2 Moo. P.C. 480, 12 E.R. 1089, put it this way:
…[I]f a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.
SUSPICIOUS CIRCUMSTANCES
The appeal court stated five examples where the the trial judge failed to properly consider the effect of suspicious circumstances:
First, the 2018 will was a marked departure from both Mrs. Bush’s and Chris Bush’s stated intentions to benefit their 18 nieces and nephews equally—an intention expressed in the 2001 will.
[20] Second, there was no explanation offered by Ms. Rodrigues or anyone else as to how Mrs. Bush’s decision to change her will came about. Ms. Rodrigues’ evidence related only to a potential justification for the change: she and her siblings lived close to the Bushes’ home and therefore had more frequent contact with them, especially in their later years.
[21] Third, Ms. Rodrigues was instrumental in the preparation of the new will; she wrote out a list of the changes to be made, provided all instructions to Ms. Manvell, arranged the appointment, and drove her aunt to the appointment to execute the will.
[22] Fourth, the changes greatly benefitted Ms. Rodrigues and her three siblings, who would each receive $1.2 million—a far greater share of the estate than under the 2001 will.
[23] Fifth, when Ms. Rodrigues applied to probate the 2018 will, causing the other nieces and nephews to ask for a copy of the deceased’s earlier will, Ms. Rodrigues informed them through her lawyer that she was unaware of the existence of an earlier will, when in fact she had provided a copy of the 2001 will to the notary along with the instructions for the preparation of the new will.
The appellant relied on more than the power of attorney’s involvement in the preparation of the will. It was that involvement in combination with her role as a person in a position of trust who benefitted significantly from the changes to the will that the appellant pointed to, contending these facts established suspicious circumstances warranting the setting aside of the presumption of validity
