When someone expects to be left behind something in the will of a loved one, and then find out they’ve been left out of the will, they may want to pursue a legal challenge to the will’s validity. However, a will can’t be challenged without first meeting a minimum threshold. What is that threshold, and how can it be met? These questions were recently discussed in a decision from the Ontario Superior Court of Justice. 

The will

The deceased passed away on April 24, 2018. His most recent will, signed on April 6, 2017, left his entire estate to his daughter, EN. His two adult sons, AC and DC, were only to receive anything if their sister predeceased them. The court explained that the siblings had a strained relationship, writing

“The affidavits and the examination transcripts of the parties demonstrate there is substantial disagreement, strained relationships and enmity between at least (EN) and (AC) and (DC) that involve past loans, loans for a vehicle purchase, addiction allegations, alcohol and marijuana use, misappropriation of funds…”

The sons, who had a strained relationship with the daughter, challenged the will on the basis that:

a.      the Will was a product of undue influence by Ms. Naismith,

b.      Mr. Clarke lacked testamentary capacity; and/orc.      Mr. Clarke failed to know and appreciate the contents of the Will.

The daughter responded by bringing a motion asking the court to deny her brothers’ application on the grounds that their challenge did not meet the evidentiary threshold to challenge the will in the first place.

The issue of testamentary capacity

The brothers stated their father lacked the testamentary capacity to sign the will. But after reviewing the father’s interactions with his lawyer during the final years of his life, there was little evidence to support this claim. The court found the father “displayed no signs of confusion or memory loss. There were no behaviours that called into question (the father’s) mental capacity or would have prompted him to take regarding testamentary capacity, undue influence or the possibility of fraud overcoming his free will.”   

The issue of undue influence

The brothers also argued that their sister exercised undue influence upon their father. Unlike the previous grounds of testamentary capacity, the brothers had some evidence to back up their claim here. The sister was aware of a previous will, which the brothers did not know about. It was also the sister who recommended to her father that he draft a new will, and she drove him to meetings to have it drafted. While the sister denied exercising any undue influence during this time, the court found that there was opportunity to do so. As a result, the court allowed the challenge to proceed. 

We will be sure to update our readers with any developments in this case. 

At NULaw, our lawyers understand that some estate disputes require skillful negotiation, whereas others may need a more powerful approach. We are committed to building strong relationships with each of our clients, understanding their personal needs and concerns, and keeping them fully informed throughout the duration of their matter. Our empathetic and compassionate approach provides our clients with the reassurance that their file is important and their needs will be well-represented. Contact us to learn how we can protect your interests and achieve the best possible resolution of your will dispute. Contact us online or at 416-481-5604 to book a consultation today.

COVID-19 Is No Excuse On Failure To Act In Estate Dispute

The impact of COVID-19 has been felt by everyone, and in many areas of life, people and organizations have received leniency in some of the…
Read Post

International Abduction When The Hague Convention Does Not Apply

Despite how large the world can be (even with technology making it seem smaller every day ) countries still demonstrate ways to work together for…
Read Post

Father Disputes Ownership Of Property With Children

The division of family property can be a contentious issue, especially if one party believes they have not received a fair share of the property…
Read Post

Contact

NULaw
509 Davenport Road
Toronto, ON M4V 1B8

Tel: +1 416 481 5604 Fax: +1 416 481 5829

NULaw proudly services clients in Toronto and throughout Ontario