In a recent Ontario decision, a daughter challenged the validity of her mother’s will after she had been disinherited along with her brother. In its decision, the court emphasized that mere suspicions as to the validity of a will are not sufficient proof of an invalid will.

Testator Disinherits Two of Her Children

The testator passed away at the age of 80 in 2018. Her husband had predeceased her. They had three children together: a son, an older daughter, and a younger daughter. 

At the time of her death, the son and older daughter lived with the testator. They had taken care of her for years during ongoing health problems.

During that time, the younger daughter lived across the street from the testator in an apartment.

The testator had created a will in 2017 in which she named the older daughter as the sole trustee and beneficiary of her estate. In the will, the testator expressly disinherited the son and the younger daughter.

The younger daughter applied to court seeing a declaration that the testator’s will was invalid and of no force and effect based on suspicious circumstances, lack of capacity, and undue influence.

Testator Had Included Three Children In Prior Wills

The evidence showed that the testator had three prior wills before the 2017 will, which had each been prepared in 1998, 2014 and 2015. 

The 2014 will had provided that both daughters were to be estate trustees and left the testator’s estate to her three children equally. It also created a Henson Trust for the son.

 The 2015 will appointed just the older daughter as estate trustee, but again left her estate to the three children equally.  

Why the Testator Left Her Children Out of Her Will

As to why the testator left the son out of her 2017 will, evidence was presented that her intention was to leave everything to the older daughter under the assumption that she would use that money to take care of the son.

Otherwise, the evidence showed that the testator had in fact tried to disinherit the younger daughter during the preparation of her 2015 will, because they had a tumultuous relationship, but her lawyer had advised against it and had indicated that if she did so she would have to undergo a capacity assessment. Ultimately, the two other children convinced the testator to leave her in at the time. 

However, what ultimately motived the testator to remove the younger daughter from her 2017 will involved an incident where the younger daughter had removed a significant sum of money from the testator’s bank account without permission. After the testator found out, she was very upset and later disinherited the younger daughter.

Court Dismisses Younger Daughter’s Application

As noted above, the main grounds of the younger daughter’s application rested on allegations of suspicious circumstances, lack of capacity, and undue influence.

The court first dismissed the allegation of suspicious circumstances, holding that the evidence did not support the younger daughter’s claim. While the court acknowledged that the testator’s exclusion of two of her three children from her will might tend to raise suspicious circumstances, it found that the evidence adequately supported the testator’s deliberate decision to do so. Additionally, the court emphasized that the younger daughter’s suspicions were not sufficient proof to challenge the testator’s intentions.

Second, the court found no evidence that the testator lacked the capacity to execute the will.

Finally, the court rejected the younger daughter’s claim of undue influence, stating:

“[The younger daughter] also relies on the lack of “cogent” evidence why [the testator] would want to disinherit both her and [the son]. In my view, there is evidence which I have already addressed that explains why [the testator] did not want to include either [the younger daughter] or [the son] in the Will. [The younger daughter]’s refusal to accept it does not establish undue influence.

Once again, all [the younger daughter] raises are suspicions which are not sufficient to establish that [the testator] was subject to undue influence at the time she executed the Will.”

In the result, the court, therefore, dismissed the younger daughter’s application in its entirety.

Contact Campbells LLP for Experienced Advice on Estate Matters

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.

An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer

At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matters since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective. Contact us online or at (905) 828-2247 to learn more about our services.