It might seem that simply having a will in place is a sure way to avoid your estate being subject to litigation after you pass away. After all, one of the primary reasons someone would draft a will is to limit the likelihood of estate litigation after their deaths. However, as we can see in a recent decision from the Ontario Superior Court of Justice, even a small estate with a relatively small number of potential beneficiaries can be subject to disagreements about the validity of a will.

Mother dies with two wills in place

The parties involved are immediate family members. The deceased passed away on June 24, 2020. The son applied for a certificate of appointment of estate trustee with a will, but the husband and daughter objected, disputing the wills.

Both of the wills were dated October 31, 2018. The father and daughter allege that she lacked testamentary capacity when she made the wills and did not have the knowledge to approve of their contents, that they were made under suspicious circumstances, and were procured by undue influence.

The son said that his father and sister have not met the necessary evidentiary threshold to support their position and that even if they have, the result should be that the lawyer who prepared them is made to provide testimony, not that a third party become involved to help reach a resolution.

Has the threshold requirement been met?

The court looked at the last few years of the deceased’s life, noting that she had to deal with serious and debilitating medical problems that required daily care and assistance. Her husband provided much of this. Her and the father had made “mirror wills” in 2008, but the father later found out from their son that she had made another will in June 2020 which limited the father’s entitlement to a $250,000 bequest.

The court stated that the parties lived a middle-class lifestyle until the deceased’s parents died. They were quite wealthy and left her millions of dollars.

The court was given evidence that the deceased’s son became heavily involved in her life during her last few years, exhibiting controlling behaviour.

The son did not provide an affidavit to rebut his father and sister’s allegations, though he did provide testimony from the mother’s financial advisor, who stated that the mother “conversed freely and with an apparent good understanding of her affairs.” An accountant also testified that the son was not “in any way acting improperly or exerting any undue influence” over his mother.

The court found that the son’s evidence supports the validity of the wills, but does not go any further, stating “It is certainly not determinative and is far from the kind of cogent evidence that would cause me to effectively end the objectors’ challenge to the wills at this preliminary stage of the litigation.”

The court did not agree that all of the father and daughter’s requests were necessary, including a request for medical and hospital records. The court also agreed with the son that the estate seemed relatively uncomplicated. However, the court found the son to be not entirely forthcoming with information about the estate’s assets.

The court seemed to strike some sort of middle ground, ordering that a third party work with the parties as an estate trustee to receive comprehensive information about the financial circumstances of the estate.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.