Litigation involving estates has become more common. One example is applications to challenge wills. Such applications tend to be made when someone believes that they should have been named as a beneficiary in the will of a loved one but has not been.

This article provides an introduction to will challenges based on a lack of testamentary capacity. We also take a look at a recent decision of the Court of Appeal for Ontario, in which a will-maker’s niece argued, amongst other things, that her elderly aunt lacked testamentary capacity.

Grounds for challenging a will

A will can be challenged (also known as contested) in court by anyone with a financial interest in the estate. Wills are often challenged on one or more of the following grounds:

• Formality – problems with the actual will itself, such as lack of a witness;
• Mental/testamentary capacity – testator did not have the capacity to understand what they were doing when making the will; or
• Undue influence.

Often, the person challenging the will attempts to invalidate it by relying on a number of different grounds, such as both lack of mental or testamentary capacity and undue influence.

The Banks v Goodfellow test for testamentary capacity

The legal test for testamentary capacity dates back to an English case decided in 1870. According to this test, the will-maker:

• must understand the nature of a will and its effects;
• must understand the extent of the property of which they are disposing;
• must be able to comprehend the people who are the natural objects of the property; and
• must have no disorder that “poison[s] his affections, pervert[s] his sense of right, or prevent[s] the exercise of his natural faculties-that no insane delusion shall influence his will and disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”.

The person advancing the will benefits from a presumption that the will-maker had testamentary capacity, provided that the will complies with the formality requirements and was read to the will-maker who appeared to understand it. However, if the person challenging the will introduces evidence of suspicious circumstances, the legal burden changes and the person seeking to rely on the will needs to prove on the balance of probabilities that the will-maker had testamentary capacity.

Elderly, bipolar woman executes new will

In Leonard v Zychowicz, the will-maker died in 2011 aged 86, without children. She had mental health issues throughout her life and was diagnosed as bipolar. She was twice married, with her second husband living in a nursing home since 2005.

In 2007, she executed a will that named her niece Zara as the sole beneficiary and estate trustee. This replaced her previous will, made in 2002, which had named another of her nieces, Cheryl, as the sole executor and beneficiary.

Cheryl challenged the 2007 will after Zara applied for probate and was appointed as estate trustee, arguing that there was a lack of testamentary capacity, lack of knowledge and approval of the contents of the will, suspicious circumstances and undue influence.

Trial judge found evidence of suspicious circumstances, but no lack of testamentary capacity

The trial judge found that Cheryl had adduced some evidence of suspicious circumstances, namely a doctor’s report prepared in response to a summary of the facts provided by Cheryl’s counsel, that said that the differences between the two wills reflected a radical change in the will-maker’s thinking about potential beneficiaries.

However, the judge found that Zara had satisfied her onus of proving that the will-maker had capacity. The judge preferred Zara’s expert who opined that her cognitive impairment would not have been a significant threat to her testamentary capacity. The judge relied on other facts, including:

• given the will-maker had four wills prior to the 2007 will, all with different beneficiaries, the further change of beneficiary was not a radical change;
• at the time the 2002 will was prepared, the will-maker’s solicitor requested a letter from her family doctor regarding whether she was capable of giving instructions to prepare a will;
• the will-maker’s solicitor had no concerns about her capacity in 2007;
• there were only a few medical interventions between 2005 and 2010; and
• the will-maker’s family did not have concerns about her ability to care for herself.

The judge said that the will-maker “made changes to her will based on her view of her relationship with people. She is entitled to do that.”

Court of Appeal agrees, upholding the will

Chief Justice Strathy and Justices of Appeal Roberts and Sossin dismissed Cheryl’s appeal, deciding that there were no palpable and overriding errors in the trial judge’s assessment of the evidence. Their Honours said:

The only change of substance between the two wills was the substitution of one niece … for another … In light of the Testatrix’s circumstances, and the terms of her previous wills, this can hardly be described as a “radical” change. The Testatrix had no children, her husband had sufficient means and, as the application judge found, “the circumstances surrounding the preparation of her prior Wills shows that [the Testatrix] was ambivalent about her beneficiaries.” 

Contact NULaw in Toronto for Guidance on Challenging a Will and Assistance with Will Disputes

If you are thinking about challenging the will of a family member or friend, the results-oriented,  estate lawyer at NULaw in Toronto can help. We will help you navigate your options and formulate a pragmatic game plan for moving forward. We will take the time to help you understand your legal rights and will identify any risks and costs that can be anticipated. We also help executors to defend wills against challenges from dissatisfied beneficiaries or would-be beneficiaries.

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of estate law issues and regularly provide honest and practical legal advice on these matters including all types of will disputes. Contact us online or at 416-481-5604 to book a consultation.