By Sarah Hallman-Krul
September 5TH, 2024
The recent Ontario Superior Court case of Graham v. McNally Estate and Blais involved a will challenge based on three commonly used grounds for invalidating a will: (a) lack of testamentary capacity; (b) undue influence; and (c) suspicious circumstances surrounding the execution of the will.
The applicant in the case, Patricia, challenged the validity of a will executed in 2020 by her late sister, Sheila, who died approximately one year after preparing the will. Patricia was not named in the will as a beneficiary, nor as Estate Trustee. The named Estate Trustee was Katherine, a friend of Sheila’s of over a decade. Katherine and her spouse were also named as beneficiaries in Sheila’s will. It was undisputed that Patricia last saw Sheila in 2011, though the sisters remained in contact through weekly phone calls until 2019. After 2019, there had been little to no contact.
Patricia’s application was made pursuant to rule 75.01 of the Rules of Civil Procedure, which allows a person “appearing to have a financial interest in an estate” to make an application to prove the will in Court. The issue before the Court was whether she had met the minimal evidentiary threshold required for the Court to permit the application to proceed. In dismissing the application, the Court provided a useful discussion around testamentary capacity, undue influence and suspicious circumstances, and the minimum amount of evidence required for each.
It is not uncommon for a relative who feels they should have been included in a will to attempt a will challenge. However, in order to be successful, there needs to be sufficient evidence at the outset. Graham is an example of this bar not being met.
From a planning perspective, testators who plan to leave out certain members of the family should contemplate the potential that the excluded person could make a claim against their estate. Though always a personal and sensitive topic, it is important to discuss these issues with an estate planning lawyer who can help establish evidence of the testator’s intention and capacity. For instance, an experienced estate planning lawyer will make note of the presence, or lack thereof, of suspicious circumstances. In addition, one cannot overemphasize the importance of ensuring that a will complies with the requisite formalities. Although there is always a chance that a disgruntled friend or family member may challenge the validity of the will, whether or not that challenge is successful will depend on the evidence.
Sarah Hallman-Krul, Associate, Miller Thomson LLP
