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Family disputes are common when it comes time to administer a Will. Sometimes, the deceased will have made promises to family members that are only found to be false when their Will is revealed after death. Nevertheless, mere disappointment is not enough to challenge a Last Will and Testament. Evidence must back up any allegation made. A recent case before the Ontario Superior Court of Justice concerns a great-nephew who unsuccessfully attempted to challenge his great-aunt’s Will.

The deceased frequently changed terms of her Will

The deceased passed away at the age of 90 in January 2020. She did not have any children and was pre-deceased by her husband. However, she and her late husband had large extended families. Together she and her husband had 22 nieces and nephews and 13 great-nieces and great-nephews. She named many of them in her Will.

The deceased’s estate was worth roughly $1.55 million upon her death. Throughout the years, she had drawn up seven Wills. Over time, she changed the executor in the Wills from her husband to two nephews on her side of the family. In her Will from 2018, the deceased gave the great-nephew at issue in this case, George, half of the house minus “$70,000 and the right of first refusal to buy it at fair market-value.” In a Will from 2019, the deceased gave the great-nephew a quarter of the house, minus $35,000.

The deceased’s great-nephew sought to challenge her Will

The applicant was the estate trustee (another family member). The deceased’s great-nephew brought a Notice of Objection concerning his great-aunt’s Will. His objection consisted of allegations of a “lack of testamentary capacity, undue influence and suspicious circumstances.”

The estate trustee asked the Court for an order vacating the great-nephew’s Notice of Objection. The trustee also requested the Court issue a Certificate of Appointment of Estate Trustee with a Will.

The great-nephew had to prove that he was eligible to challenge the Will

The Court first considered the great-nephew’s Notice of Objection. The question was whether he had met the threshold needed, at minimum, to challenge the validity of the 2019 Will (which the estate trustee wanted to take precedence). The importance of this legal threshold was explained by the Ontario Cout of Appeal in Neuberger v. York:

“In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of smaller estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.”

The Neuberger case also described how an individual can meet the evidentiary threshold. The person challenging the Will must produce evidence that, if accepted, would call into question the validity of the Will.

The great-nephew had reasons to believe the Will was invalid

The great-nephew filed an affidavit in which he claimed that throughout 2018, the deceased allegedly told him that half of her house would be left to him. In the last year of her life, when the impugned Will was executed, the great-nephew claimed the deceased told him about her medication making her feel unwell or fatigued and that it caused her to experience some confusion. He stated that she was frequently admitted to the hospital in the year leading up to her death. She could not hear as well as she used to and had been prescribed more medication by her psychiatrist. The great-nephew pointed to the deceased’s recorded medication history from 2016 to 2019, which showed a marked increase in dosage between the making of the 2018 Will and the 2019 Will.

Finally, the great-nephew commented on the deceased’s behaviour. As an example, he referred to an incident in which the deceased refused to see him on his birthday after he had simply failed to give a bottle of olive oil to her relative. He also noted that a family friend seemed to be spending a lot of time at the house during that time.

Other relatives supported the great-nephew’s concerns

One of the deceased’s relatives submitted an affidavit confirming that the deceased had been unwell during the last year of her life. The relative stated that the deceased frequently complained about her medication and may have been experiencing hallucinations. The relative also noted the increased time spent between the deceased and the family friend.

Another relative confirmed by way of affidavit that the great-nephew was to receive 50% of the deceased’s home, according to the deceased’s statements in 2018. This relative stated that she had initially assisted the deceased by taking her to church after her husband’s death, but she was eventually replaced in this task by the family friend.

Evidence did not demonstrate that deceased lacked testamentary capacity

After assessing the great-nephew’s submissions, the Court noted that all of his evidence did not lead to the conclusion that the deceased had lost her testamentary capacity by the time she had executed the 2019 Will. It was accepted that the deceased likely did tell the great-nephew and others that he would receive half of the home in 2018. However, this did not mean that her intentions in executing the 2019 Will should be questioned. Even the hallucinations described to a relative were posed more as “vivid dreams” than hallucinations affecting testamentary capacity.

The Court further held that the family friend’s involvement in the deceased’s life does not prove that the friend had undue influence over the deceased. Likewise, the increased medication dosages did not automatically mean the deceased lacked testamentary capacity. In fact, she had also been prescribed medication ahead of the drafting of the 2018 Will. The great-nephew did not tender evidence that such an increase in 2019 would have affected her capacity.

For all of these reasons, the great-nephew’s Notice of Objection was vacated by the Court. The Court directed the Registrar to issue a Certificate of Appointment of Estate Trustee to the executor under the 2019 Will.

Derfel Estate Law Helps Position Clients for Success in Will Challenges

At Derfel Estate Law, we understand how difficult it can be to handle the affairs of a loved one’s estate after they have passed. Our experienced team of estate lawyers is always up to date on estate administration requirements and has extensive experience with Will challenges. We are committed to providing our clients with personalized attention and work closely with you through the duration of your case to keep you informed every step of the way. Contact us by phone at 416-847-3580 or reach us online to schedule a confidential consultation.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estate Law

Contact Derfel Estate Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

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