Not everybody likes surprises, and this can be especially true when it comes to matters related to money. In the world of estate law, surprises can sometimes lead to litigation. This usually occurs when a person or group of people assumed they would have been included in a will only to find out they were cut out. This can be especially surprising in the event that it’s someone’s child or children who have been cut out as beneficiaries in their parents’ estates. This was exactly what occurred to a family who recently found themselves before the Ontario Superior Court of Justice after two of the testator’s three children were left out of her will.

Mother relies on children to care for her as her health deteriorates

The family members involved in the dispute are a mother (“the testator”) as well as her three children “RDN”, “TDN” and “LDN.” RDN was the testator’s son, while TDN and LDN were her daughters. The testator’s husband predeceased her.

In the years leading up to her death, the testator experienced health issues. During this time, one of her daughters, TDN, served as her personal attorney for both personal care and property. While TDN had a legal responsibility for her mother, her brother RDN also helped take care of her when her health began to deteriorate around the summer of 2014. During this time, the third child, RDN, lived across the street from the family home in an apartment she shared with her boyfriend.

Testator looks to sell house

Once her health problems began, the mother began to explore the sale of the family home. She had originally planned to sell it to a developer, but those plans fell through after the closing date was pushed out a number of times. She ultimately hired a real estate agent to help her with the sale.

The testator’s neighbour eventually made an offer to buy the home. She hired a family friend who was a real estate agent to help her. The agent and the testator made a deal with the neighbour that would see him purchase the home while allowing the testator to live in it for $1 per year until her death.

The mother makes a new will

The real estate agent helped the testator in the preparation of an Agreement for Purchase and Sale and introduced her to a lawyer he had worked with in the past. The testator hired the lawyer to help with the sale of the home, and she also hired him to prepare a new will for her.

The lawyer testified that at the time he had no concerns about the testator’s health or ability to provide him with instructions. The instructions provided were that she wanted to leave all of her property to TDN, adding that she would know what to do and would look after the other two children. The lawyer said she seemed to understand the severity of such a decision.

The will was signed a few days later. The execution of the will was done at the testator’s home after the lawyer was told she was unable to travel to his office to sign it. Witnesses were arranged and the will was signed at her home. Once again, despite the testator’s physical health concerns, the lawyer said she seemed alert “as usual.” He also explained that he went over the details of the will with her once again and that she understood its contents.

Daughter challenges the validity of the will

Two of the testators previous three wills provided that all three children would share the estate equally. However, the last will made before the one in question removed LDN as a beneficiary. The testator explained that she had concerns with LDN’s substance issues. At one point, LDN had stolen money from the testator’s bank account. This was the last of a long series of incidents between the testator and LDN.

Despite this, LDN claimed that her mother was the victim of undue influence and lacked capacity to sign the will.

The court explained that the will was duly executed, and as such, LDN has the burden of showing that the will should not be enforced because of “suspicious circumstances.” Only once that is demonstrated does the burden shift to the estate trustee to show the suspicious circumstances are either untrue or should not call in question the validity of the will.

The court also explained that undue influence “arises where the testator’s agreement to the will was obtained by influence such that instead of representing what the testator wanted, the will is the product of coercion.”

In this case, the court was unable to find anything that indicated the testator was not aware of the contents of her will. This was enforced by the testimony of the lawyer. The court agreed that the testator’s decision to leave the estate to just one of her children might seem suspect at first, that suspicion does not amount to much once the context of the rest of the facts have been provided.

As a result, the court dismissed the application and allowed the will to be enforced and its instructions carried out.

Contact NuLaw for assistance with Will Disputes i

If you are experiencing conflict in dealing with an estate, contact the experienced estate litigation lawyers at NuLaw in Toronto. We regularly assist clients will disputes, will challenges, dependent relief claims, and estate administration. We can be reached online or by phone at 416-481-5604.

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