Stress-testing a will

Under the law, a person drawing up a will is free to make whatever will he or she wants to make. Even if the person allocating the property—the testator—is fickle or capricious, a will is a will and must be honoured, says the law.

But while a person drawing up the will has the right to draft one according to his or her wishes, family members who have been left nothing in a will or left less than they expected also have the right to challenge and contest it.

Courts have the ability to investigate these cases thoroughly. They are obliged to determine the terms of the last will or other testamentary documents, which together constitute the last will and are to be admitted to probate.

The four primary bases upon which a will can be challenged are:

• lack of testamentary capacity;
• undue influence;
• lack of knowledge and approval; and
• lack of due execution.

The concept of “suspicious circumstances” may also play a part in a challenge.

Test for capacity

The test for capacity means a person must be generally aware of the nature and extent of their assets, the persons who will benefit and the provisions being made. The testator must also appreciate those provisions in relation to each other and take an orderly approach. It’s up to the executors and/or those who obtain a benefit under the will to establish testamentary capacity.

Read:When to use dual wills

However, capacity is presumed if there is no evidence to the contrary. This presumption may make it easier for a person to succeed regarding a particular issue. However, presumptions are refutable; they can be met or overcome by putting forward other evidence, which is then accepted by the court.

Undue influence

Undue influence is another name for coercion. There is a difference between persuasion or inducement, which may be legitimate, and coercion, where the person making the will is somehow made, required or forced to do—by way of a will—that which he or she would not otherwise do.

Coercion may take many different forms. It’s generally the responsibility of those who allege it to verify it occurred. A challenger is rarely able to prove using direct—as opposed to circumstantial—evidence. The reason being undue influence typically takes place in secret, with no one else present to observe it.

It can include:

• a beneficiary pressuring a person to transfer money to them while the testator was alive;
• the beneficiary being instrumental in obtaining a power of attorney over the testator;
• the use of that power of attorney to the benefit of the beneficiary or detriment of the testator;
• the beneficiary being involved in the making of the testator’s will;
• interfering with the testator obtaining medical care or treatment;
• concealing activities involving the testator’s assets from others; and/or
• restricting contact or access to the testator by others.

Lack of knowledge and approval

It’s up to those who want to prove the will to establish whether a testator knew and approved of a will. Proving this can be achieved by establishing that the will was read to the testator or otherwise brought to his attention. In that instance, there is some presumption of knowledge and approval.

Read: Contest unusual conditions in wills

Lack of due execution

As for due execution or the signing of the will, the onus is on those putting forward the will to prove their case. This is typically not difficult to do. It is presumed due execution took place if there is no evidence to the contrary. As for a formal will, under Ontario law, if it is signed by the testator in the presence of two witnesses, who then sign as witnesses, due execution has been achieved. The solicitor that drafted the will obtains an affidavit of execution from one or both of the witnesses, either when the will is signed or afterwards, and keeps it in his file. The affidavit is evidence of due execution.

It should be noted that in Ontario the making of holograph or informal wills is also allowed. A testator can make a valid will entirely in his or her own handwriting and sign it, without any formality and without a witness. While it would be difficult to allege lack of knowledge and approval with a holograph will made by the testator in his or her own hand, such a will may still be challenged on the basis of lack of testamentary capacity and/or undue influence.

Where there is evidence of “suspicious circumstances,” the court may place a higher onus upon those who seek to prove a will in terms of both testamentary capacity and knowledge and approval. The court may look at a variety of evidence in assessing whether “suspicious circumstances” are present or not. These could include determining: whether the will was somehow procured by the beneficiary; any physical or mental impairment of the testator when the will was written; whether the will is a significant departure when compared with a previous will; whether the will does not make sense; and the facts surrounding the signing of the will.

If a will is deemed invalid, typically the will was written just before it will be honoured, if there is one. Otherwise, a testator’s assets will pass according to the statutory rules on intestacy, the condition of the estate of a person who dies without a will. Although uncommon, it should be noted that it is possible even for part of a will to be invalidated.

Other claims

There are certain other claims that may be initiated where a will challenge may not be viable, or in combination with such a challenge. While such claims do not affect the validity of the will per se, a successful outcome may significantly impact the value of the estate.

Read: When are trusts better than wills?

For example, under the Family Law Act, a married spouse of the deceased can choose an equalization of net family properties of the survivor and deceased and would give up the benefit of any gifts in the will. A dependant’s relief claim is available to a spouse, married or a person who has lived with the deceased for three years or more, a parent, a child, or a brother or sister of the deceased to whom that person was providing support or was under legal obligation to do so before the testator’s death.

Claims are also available to a person who provided a benefit or enrichment to another, and suffered a corresponding deprivation or diminishment, in circumstances where there’s no reason for the other to receive or retain that benefit without providing compensation. A payment or transfer of property from an estate to pay such a claim would reduce the available funds to be distributed to the estate’s beneficiaries.

Protecting the will

There are many steps that can be taken in an effort to ensure a will cannot be successfully challenged. One is to have a lawyer draft the will, instead of doing it oneself or by purchasing a kit. Many wills are done in two meetings with a lawyer: an initial meeting to provide information and then to draft the will; and, a subsequent meeting in which the will is reviewed and signed.

Insisting on further and other meetings over time with a lawyer can also be wise. The information recorded in the lawyer’s file during such meetings should help protect the will from a successful challenge. In that regard, you get what you pay for. In cases where a person suspects a challenge after their death, it’s a good idea that they spend both time and effort beforehand to avoid the high costs of defending a challenge.

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Individuals fearing a challenge should also let their lawyer know their concerns and have them take detailed notes. They should also ensure the lawyer asks them questions designed to assess their testamentary capacity and records the answers. Such questions would include:

• the nature and value of their assets;
• their relationships with family;
• whom they wish to include in their will;
• they wish to dispose of their property—the plan or structure of their will.

Many lawyers have their own checklist or form to be filled out which sets out asset information, choice of executors, names and addresses of beneficiaries and other significant considerations for the creation of the will. If the lawyer does not have such a checklist, it’s possible to obtain one from a provincial law society and to fill it out and give it to the lawyer.

It’s also important that a lawyer takes note of the reasons for a person’s dispositions and records the answers. This is particularly critical if the person drawing up the will is excluding someone or favouring certain people over others. It is debatable as to whether it is appropriate or necessary for these reasons to be set out in the will. Such reasons don’t serve the function of giving or dividing property. It’s probably a better idea to include them in a memo to the lawyer or have the lawyer take extensive notes.

Other protections

Assessing testamentary capacity is the job of the lawyer making the client’s will. If the client is not capable, the lawyer cannot make a will. This is, however, not the same thing as obtaining an opinion from a doctor or capacity assessor.

If a person is concerned over the prospect of a challenge, they should speak with their lawyer as to whether such opinions should be obtained.

Read: An estate planning checklist

They should also ensure that their lawyer asks questions designed to test for and negate the prospect of their being subject to undue influence.

Such questions may relate, in part, to their reasons for making particular choices, their level of independence concerning the activities of daily living or whether they are dependent on any of those people who will be receiving a benefit in their will. They may also wish to have their lawyer assess their vulnerability to undue influence because of physical or mental health issues, their independence in the terms of activities of daily living or otherwise.

Some lawyers may offer to tape-record or videotape the meetings to obtain information and have the will signed. This may or may not be effective evidence to be put forward in response to a will challenge and such a recording may make a client uncomfortable.

People drawing up a will should also avoid having the primary or a significant beneficiary of their will find them a lawyer or make any appointments with the lawyer to draft the will. Ideally, that person should not take them to those appointments or be involved in the processes of will-making whatsoever.

Sometimes, however, this may be impossible. If it cannot be avoided, the lawyer should ensure the beneficiary is assisting them at their request. Their lawyer should meet with them alone to take instructions regarding the will, and to review it and sign it before two witnesses. If more assistance is needed, it is better to have someone who receives no benefit under the will to assist them in finding a lawyer and taking them to appointments.

As for other claims that may be brought against the estate and could diminish its value, the testator should discuss with their lawyer any facts about their life and relationships with others, which may give rise to such claims. That way, efforts can be made to deal with those persons and claims in advance of death, either by the terms of their will or otherwise.

Read: Don’t assume your client has a will

Many people avoid or do not wish to tell those who may expect to benefit under a will what they stand to receive. That is understandable, particularly when certain people who may expect to benefit are being excluded or favoured over others.

However, talking to potential beneficiaries of one’s will, communicating the reasons for doing so to them, and recording this process in a lawyer’s file can help avoid the prospect of a successful challenge to a will.

Danny J. Dochylo is a partner at Borden Ladner Gervais and national chair of the Estate and Family Law Litigation Focus Group.