In last week’s blog, we covered a situation where siblings were at odds over which of their parent’s wills should stand after multiple wills were found. This week we continue to look at disputes over wills amongst family members. This time we look at the case of some members of a family alleging “suspicious circumstances” when some family members helped get a will signed.  

The facts

The father of the children involved died on October 29, 2015, following a long battle with cancer. During his illness, the mother was also diagnosed with cancer. She denied surgery suggested by her doctors, and also refused to take all of her prescribed pain medication. By the time the father died the mother was told that the cancer had spread and surgery was no longer a viable option for her. Instead, she was told that palliative care was her only available form of treatment.

It goes without saying that the passing of the father as well as the news about her own cancer had a huge emotional toll on the mother. Neither she or the father had wills or power of attorney in place prior to this.

One of the mother’s sons (“R”) was married to “T” who helped hire a lawyer. T filled out a “client information sheet” and sent it to the lawyer. The mother did not sign the sheet. The lawyer used the information on the sheet to make a will and a medical directive document for the mother.

The mother’s condition took a turn for the worse, and the lawyer was asked to meet with her at the hospital on December 23, 2015, in order to have her sign the will and other documents. Once the power of attorney document was signed, R used it to transfer the mother’s house to his own name.

One of the brothers (“TG”) thought that T and R may have exerted influence on the mother and challenged the validity of the will and the power of attorney on a number of grounds, including “suspicious circumstances surrounded with the making of the Will” as well as “undue influence” concerning the power of attorney.

Suspicious circumstances

The court noted that it was agreed that the will and POA were signed in front of witnesses, satisfying its formal requirements. The court listed a number of considerations that could be made when trying to determine if suspicious circumstances exist. They are:

1) the extent of physical and mental impairment of the testator around the time the will is signed;

2) whether the will in question constitutes a significant change from the former will;

3) whether the will in question generally seems to make testamentary sense;

4) the factual circumstances surrounding the execution of the will; and

5) whether a beneficiary was instrumental in the preparation of the will

The court found that all five of the considerations had been met. The next step of the court’s analysis was to ask whether the mother had testamentary capacity. The court found that R and T were entirely responsible for the creation and the signing of the will and that there was no evidence the mother knew what was in it or appreciated the significance of cutting other siblings out of the will. As a result, it was declared invalid.

A will can be contested on the basis that the testator (i.e. person making the will) lacked sufficient testamentary capacity at the time the will was made and did not understand or know what they were doing. If you are concerned that this may be the case with a will, please contact us at 416-847-3580 or contact us online to schedule a consultation.