When dealing with an individual’s estate after their passing, it will be crucial to determine who the estate’s executor is and the beneficiaries of the will. When a testator is known to suffer from mental or other incapacities, it will be essential to understand that the will was not drawn up under the influence of bad actors.

Impairments of the mind can sometimes require greater care, especially when drafting important legal documents. Roughly one-third of Canadians experience mental illness in their lifetime, and one in five Canadians have had to care for someone living with dementia. With mental impairments so widespread, it is useful to understand the common grounds used to contest the will of an individual with a history of mental health and cognitive impairment.

Demonstrating Undue Influence in Estate Cases

Undue influence occurs when a third party exerts pressure on a testator to the point that restricts their free will, causing them to do something they would not have done otherwise. It results in a will or a trust that aligns with the desires of the undue influencer rather than the testator. We have previously written about the indicators of undue influence in estate cases.

Demonstrating undue influence is not easy to do in an estate matter. The influence must be so profound it extends to coercion, effectively taking away the testator’s free will. In addition, direct evidence of undue influence is difficult to produce because the usual actors also tend to be the ones who can be a legitimate influence as well.

The Testator Lacks “Testamentary Capacity”

Another common issue in wills challenges involving mental illness or cognitive impairments is that the testator lacked testamentary capacity. Testamentary incapacity suggests that the mind of the testator is unable to understand a limited range of topics. By contrast, testamentary capacity implies a “disposing mind and memory.” As is described in Leger et al. v Poirier, this type of mind:

“is one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revocation of existing dispositions, and the like. Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole, and this was not present here.”

There Are Four Criteria to Confirm Testamentary Capacity

To determine whether a testator has the capacity to make a will, the court in Banks v Goodfellow explained the four criteria to be considered.

1. The testator understands the nature and effect of the will.
2. The testator understands the nature and extent of the assets involved.
3. The testator understands the people who may have “moral claims” to the estate.
4. The testator is not suffering from a “disorder of the mind [that] poisons the Testator’s affections, perverts his sense of right or prevents the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Suspicious Circumstances Put into Question Validity of a Will

When a will is valid on its face and is drafted as prescribed by law, there is a presumption that the will is valid. One way someone can attack the validity of a will is by introducing evidence of suspicious circumstances. When suspicious circumstances are alleged, the proponent of a will must prove that the testator had testamentary capacity and that they knew and approved of the contents of the will.

Generally, there are three instances where suspicious circumstances may be raised, as defined in Vout v Hay:

1. Circumstances arise in the preparation of the will,
2. Circumstances that put into question the capacity of the testator, or
3. Circumstances tending to show the coercion or fraud took away the testator’s free will.

Remember that Estate Litigation Can Be Costly

Although you may feel you have grounds for contesting a will based on undue influence, suspicious circumstances, or a lack of testamentary capacity, it is important to remember the consequences if a court determines you’re wrong. In a recent case before the Ontario Court of Appeal, an appellant was ordered to pay costs of over $70,000 when her appeal was dismissed.

The appellant had challenged the validity of the will based on suspicious circumstances, undue influence, and a lack of testamentary capacity. Her late aunt had changed the beneficiary of her will a number of times through the years. The appellant was the sole beneficiary for a time until she and her aunt had a disagreement. Her aunt changed the beneficiary to a different niece thereafter.

The appellant brought an expert before the court to share evidence to prove testamentary incapacity. The expert opinion, however, was outnumbered by overwhelming evidence to the contrary. In the end, the Court of Appeal dismissed the appeal. Although the appellant was granted leave to appeal the decision on costs, the additional expenses for litigation are notable for anyone making these kinds of challenges.

Discuss Your Options with the Wills & Estate Lawyers at Campbells LLP

At Campbells LLP, our team of exceptional Oakville lawyers provides practical, forthright legal advice and representation on everything from estate planning to complex litigation. We are here to answer your questiohttp://localhost:10139/?page_id=131ns about the many ways wills can be challenged so you can handle your affairs with confidence. To learn more about how we can help you, contact us online or at 905-828-2247. We look forward to speaking with you and going through this process by your side.