There are a number of reasons why someone may want to challenge a will. One such reason that comes up quite frequently is when someone doesn’t believe that the testator (the person making the will) had the capacity to do so. This could be because of health reasons, or it could be because a third party exercised undue influence on them. In a recent decision from the Ontario Superior Court of Justice, one daughter of the testator believed that her mother’s will should be invalidated because she lacked capacity, while the other daughter thought the will should be considered valid.
Daughter left out of will
The applicant was one of the testator’s children. She was left out of her mother’s will when she died in August 2020 at the age of 95. The will, which was signed in 2015, left portions of the estate (valued at $475,000) to the testator’s two other children (a son and another daughter, who was named executor of the estate). The applicant states that her mother’s previous will, which was signed in 2007, included her, adding that her omittance from the latest will was “inexplicable.”
As someone who stood to have an interest in her other’s estate, the applicant relied on the Rules of Civil Procedure to allow her to seek disclosure of relevant material that she said she needed to look into her mother’s capacity.
The applicant’s sister, who is the executor of the estate, said there was no basis for her sister’s disclosure request, and that the applicant is aware of why she was disinherited. She says her sister was provided with copies of the will prior to the testator’s death and claims the application is part of a fishing expedition.
Should the applicant’s request for disclosure be granted?
Both the applicant and the executor state relied on two decisions from Ontario which address applications for disclosure. Both decisions state that some minimal evidentiary threshold must be met in order for someone to be successful in this type of application. The more recent decision stated that the threshold isn’t about proving their case, but proving whether they ought to be given the tools, including documentation through discovery, to do so.
The court from the executor that the applicant had previously acted as the testator’s attorney for property and personal care from 2004 to 2014, but became concerned after she added her name to a number of bank accounts and had them transferred. The court was told that the testator asked a lawyer to demand accounting from the applicant’s time in the role, but faced difficulty in doing so. The executor added that the applicant had phoned the testator and was abusive towards her.
In response, the applicant relied on testimony about her mother’s health, stating her health was declining in her later years, and that in 2011 she wandered out of a hospital without a coat or shoes. This led to a diagnosis of early-onset Alzheimer’s.
However, the testator’s lawyer said he was left with no concerns about her ability to instruct him in matters related to her estate, adding she was “perplexed” over the applicant’s behaviour. The lawyer said in his 20 years of practicing, he was attuned to concerns about capacity, undue influence, and duress, and that these were not factors here.
In its analysis, the court found that there was good reason for the testator to have written up a new will after the events described, stating “the applicant, while owing (the testator) a fiduciary duty as her attorney for property, had named herself as the beneficiary of some of (the testator’s) investment accounts and then refused or failed to provide (the testator) with an accounting.”
The court said the testator’s estate should not be put through any additional troubles or expenses, and dismissed the application.
Call Derfel Estates Law For All Your Estate Law Needs
If you are considering filing an application to challenge a will, contact the experienced estates lawyers at Derfel Estates Law before you proceed. We help our clients understand if they are eligible to bring such a claim, and help them understand your options and rights. We can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.