Last week, we reviewed a preliminary ruling in an estate case in which an Ontario court determined that a son’s surreptitious recordings of his mother’s conversations could be admitted into evidence.

This week, we look at the ultimate outcome of that case, focussing in particular on the daughter’s claim of suspicious circumstances surrounding the execution of the mother’s powers of attorney.

Mother Changes Estate Plans

The son and daughter went to court over their 91-year old mother’s estate plan. In 2016, the mother had signed new powers of attorney in which she named the son as her attorney for property and for personal care. She also created a new will naming the son as her executor and as the beneficiary of the residue of her estate.

These documents replaced previous ones executed in 2009, which had named both the daughter and the son as her attorneys, and had divided the residue of her estate equally among the son, the daughter and a grandson.

Siblings Go to Court Over Mother’s Estate Plans

The daughter argued that the mother did not have the mental capacity to execute the 2016 powers of attorney and they should be declared invalid. She alleged suspicious circumstances surrounding their execution. She also sought to be appointed the mother’s guardian.

In his application, the son sought a declaration that the 2016 powers of attorney for property and personal care were valid.

What Constitutes Suspicious Circumstances in Estate Cases?

The court began its analysis of the validity of the 2016 powers of attorney by explaining that, in estate cases, whether a court is dealing with a will or a power of attorney, suspicious circumstances may be raised by:

(1) circumstances surrounding the preparation of the will,

(2) circumstances tending to call into question the capacity of the testator, or

(3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

Additionally, the court stated that it may consider the following factors in determining whether there are suspicious circumstances:

• The extent of physical and mental impairment of the testator around the time the document was signed;
• Whether the document in question constitutes a significant change from the former document;
• Whether the document in question generally seems to make testamentary sense; (only in the case of wills)
• The factual circumstances surrounding the execution of the document; and
• Whether any beneficiary was instrumental in the preparation of the document.

Court Finds Suspicious Circumstances in the Execution of Mother’s Powers of Attorney

The court considered each of the factors listed above in evaluating the validity of the mother’s 2016 powers of attorney. In particular, the court focussed on evidence that the mother had memory issues at the time, that the document templates had been provided by the son and that the witness to the execution of the documents described the mother as confused about what she was signing.

As a result, the court concluded that the powers of attorney had been executed under suspicious circumstances, including suspicious circumstances in respect of the mother’s capacity and undue influence by the son.

Court Finds Powers of Attorney Are Invalid

Because the court found the existence of suspicious circumstances surrounding the execution of the mother’s powers of attorney, the onus shifted to the son to prove the mother’s capacity. The court held that the son was unable to meet the relevant legal tests and thus declared the 2016 powers of attorney were invalid. The court further held that the son had failed to show that the mother had signed the powers of attorney as a result of her own “full, free and informed thought” and had therefore failed to rebut the presumption of undue influence arising from his and the mother’s relationship.

In the result, the court therefore declared the mother’s 2016 powers of attorney to be invalid and appointed the daughter and the mother’s sister-in-law as her guardians.

Contact Campbells LLP for Experienced Advice on Estate Planning

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 matter 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.

At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized.  Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.