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Probating a Will – Suspicious Circumstances – Testamentary Capacity
The Supreme Court of Canada, in the 1909 case of Laramée v. Ferron(1), cited in Nassim, states eloquently that:
.. We must not ... so render it impossible for old people to make wills of their little worldly goods. The eye may grow dim, the ear may lose its acute sense, and even the tongue may falter at names and objects it attempts to describe, yet the testamentary capacity be ample.
To deprive lightly the aged thus afflicted of the right to make a will would often be to rob them of their last protection against cruelty or wrong on the part of those surrounding them and of their only means of attracting towards them such help, comforts and tenderness as old age needs.
A will that has been properly and formally executed in accordance with the Wills, Estate, and Successions Act(2), after the will-maker has reviewed the will and appears to understand that will, will gain the presumption of the court that the will-maker understood and approved the will, and had the mental capacity to sign it(3).
But if there are “suspicious circumstances”, then the person seeking probate has the burden of showing it was more likely than not that the will-maker had knowledge of and approved the will.
Suspicious circumstances include circumstances:
1. surrounding the preparation of the will;
2. calling the testamentary capacity of the will-maker into question; or
3. showing the free will of the will-maker was overborne by acts of coercion or fraud.
This article is focused on the second of these suspicious circumstances, testamentary capacity, which is determined in BC by the application of the following common-law test(4):
The will-maker generally must have understood, at the time of giving instructions, and at the time of signing the will:
1. the nature and extent of their property;
2. who the natural beneficiaries of the will would be;
3. the general provisions they were making in the will;
4. how these factors worked in relation to each other; and
5. that the property would pass, as desired, to the beneficiaries.
A BC case, Nassim v. Nassim Estate, presented some potential circumstances which may raise questions regarding testamentary capacity:
1. medical opinions to the effect of stating the will-maker has dementia, Alzheimer’s, or other conditions involving mental capacity, and the capacity to manage their own financial and personal affairs;
2. observations from caregivers, close family members, and close friends;
3. substantial deviation from previous estate plans;
4. involvement of new beneficiaries (in contrast to previous estate plans) in arranging the new estate planning;
5. delusions in relation to the will-maker’s property and to beneficiaries from the previous estate plans; and
6. inconsistent statements made by the will-maker in relation to the new estate plan compared to previous estate plans.
The holding of Nassim gave weight to the opinions of the medical professionals in determining whether there were suspicious circumstances in regard to testamentary capacity. The Court in Vout v. Hay, affirmed in Nassim, held where suspicious circumstances are properly raised, the burden then shifts to the person proving the will to show it was more likely than not that the will-maker had knowledge of and approved the will.
The opinions of medical professionals have been measured in the context of surrounding facts, and the testimony of a lay person, where perceived as honest and reliable testimony by the court, can be held to have greater weight than those medical opinions(5). Furthermore, while medical opinions as to capacity were generally relevant, a contemporaneous opinion to testamentary capacity specifically, by experienced lawyers, would generally be the more compelling evidence. However, the assessment by the lawyers would never be considered binding to the court, who must look at all evidence and assess its weight in the context of the facts.
In the 2019 complex Ontario case of Slover v. Rellinger, it was held, “for a (will-maker) to be found incapable on the basis of insane delusions, the delusion must be shown to be false and fixed, that is incapable of explanation or rationalization, and it must have taken over the person's will-making. Anger or resentment based on a factual basis that exists is not enough.(6)” Numerous and extensive medical opinions were given in this case stating that the will-maker’s state of mind fell short of delusional, and that the will-maker did indeed have capacity.
However, in Slover, for complex reasons, the Court did not find that those medical opinions were compelling, and gave greater weight to the testimony of the will-maker’s daughter, whose testimony was perceived as honest and reliable, and to the will-maker’s lawyer, as evidenced by this statement from the Judge, “by reason of (the lawyer’s) history with (the will-maker), his training and his familiarity with principles of testamentary capacity, (he was) well-positioned to assess (the will-maker)'s testamentary capacity.(7)”
Further, the Court in Nassim stated that the best evidence as to testamentary capacity would be the assessment made by the lawyers at the time the will was made. Experienced and knowledgeable wills & estates lawyers were aware of the test for testamentary capacity, and where the lawyers had properly met with the client prior to signing to take instructions, had properly explored the prior estate plans and family dynamics, and were aware of the possible challenge to the will and allegations of impaired capacity, then the opinion of the lawyers of capacity would generally constitute “adequate proof on the balance of probabilities” of testamentary capacity.
Although a lawyer’s opinion on testamentary capacity is never binding to the court, this 2006 case, appealed in Alberta, was overturned, as the trial judge did not give weight to the lawyer’s opinion on testamentary capacity, but it was held by the appellate court that the trial judge should have(8):
The (will-maker)'s reason for excluding the respondent is expressly articulated in his will and (the lawyer) was satisfied the will expressed the testator's wishes.
In conclusion, to help reduce the exposure to the risk that one’s will and desired disposition of their estate is overturned or modified due to a determination of a lack of testamentary capacity, it is essential that one’s estate plan be planned and executed with the help of an experienced wills & estates lawyer, like the wills & estates lawyers at Johnston Franklin Bishop.
Please give us a call at 250-756-3823 to discuss your estate plan today.
[1] Laramée v Ferron, [1909] SCJ No 10, 41 SCR 391, 41 RCS 391, 1909 CanLII 50
[2] Wills, Estates and Succession Act, SBC 2009, c 13.
[3] Vout v Hay, [1995] SCJ No 58, [1995] ACS no 58, [1995] 2 SCR 876, [1995] 2 RCS 876,125 DLR (4th) 431, 183 NR 1, JE 95-1367, 82 OAC 161, 7 ETR (2d) 209, 55 ACWS(3d) 1101, 1995 CanLII 105, 1995 CarswellOnt 186
[4] Nassim v Nassim Estate, [2022] BCJ No 438, 2022 BCSC 402, 2022 ACWS 497, 75 ETR (4th)263, 2022 CarswellBC 636
[5] Slover v Rellinger, [2019] OJ No 5818, 2019 ONSC 6497, 53 ETR (4th) 60, 2019CarswellOnt 18916 at para 310
[6] Id.
[7] Id.
[8] Kurtz v Nicholson, [2006] AJ No 783, 2006 ABCA 203, 26 ETR (3d) 211, 151 ACWS (3d)148, 2006 CarswellAlta 837 at para 23
