Will Challenge

In Ontario a Will Challenge addresses a number of questions. Did the testamentary document comply with the formalities of execution? Did the testator have testamentary capacity? Was he subject to undue influence? Did the testator know and approve of the contents of the will? The answers to these questions will impact on the validity of a will.

capacity

Capacity in the Estate Context

I was invited to speak at a Law Society of Ontario CLE seminar that took place on October 30, 2012. It featured many people who I consider some of the best practioners in this area. My paper analyzed whether Justice Cullity, in Banton v. Banton, expanded the test on insane delusions. At the actual presentation, Jordan Atin, the Chair of the program, asked Ian Hull and me to address a potpourri of issues. My topics included capacity, undue influence, managing client expectations, and evidence in the context of estate disputes. Ian Hull spoke on strategy in estate litigation among other topics. At the conclusion of the seminar I received a number of requests to provide my notes or something more formal to those who enjoyed the presentation. They felt the time was short and wanted specifics of some of the source material I referred to for use in their practice. This blog is, in part, a response to those requests and provides a review and sources for my comments on capacity and undue influence.

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sexual orientation

Is disinheritence because of sexual orientation legal?

Will a Canadian court vary or set aside a will when a parent disinherits a gay/lesbian child because of his/her sexual orientation? The law may be different depending on the province.In Canada, the law balances the idea of testamentary independence against public policy concerns. While cherishing testamentary freedom, the law intervenes when it finds provisions in the will offensive to public policy and or equity. In Ontario, this restriction on testamentary freedom has been expressed by laws passed to protect spouses (under Part I of the Family Law Act) and dependants (under Parts II and V of the Succession Law Reform Act).

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Are Will Kits a good idea?

Imagine a scenario when two sisters, Jane and Jillian, were living in Ontario. Jillian was going on vacation and wanted to make a Will - just in case, but did not want to bother with a lawyer. She bought a Will kit and filled in the places where indicated and left everything to her boyfriend and charity. By mistake, she misread the instructions and did not sign the Will at its end. Jillian died and her sister's lawyer challenged the Will asking that it be declared invalid for not complying with the formalities required when executing a Will. Jillan's intention was unambiguous, but was her Will valid? Maybe - Maybe not.

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Honouring your Parent’s Pledge to Charity

Still today, I remember the Rosh Hashanah of my youth and especially the awe I felt hearing Chazzan Weiss' Unetane Tokef Prayer. As a child, hearing the congregation chant the prayer "Repentance, Prayer and Charity reverse the evil decree" made me think. If I give charity, does G-d consider himself bound to change the decree? Now as an adult, given my profession and with my tongue planted firmly in my cheek, I cannot help but also wonder whether our estates would be bound by charitable pledges if the Master of the Universe, G-d forbid, did not keep his side of the bargain. As you can imagine, there are times when a person makes a pledge to a charity and passes away before the pledge is honoured. Do you think the family should still honour that pledge? Is there a legal obligation to do so?

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Estate Litigation Often Starts With These Questions

Did the Testator have capacity to make a will? Did the Grantor have capacity to grant a power of attorney? Courts look to a number of factors to answer these questions. There are a number of excellent articles and textbooks that address the tests and difficulties in litigating capacity. Addressing those issues is beyond the scope of this paper. The purpose of this article is to address the utility of a retrospective capacity assessment in the face of apparently overwhelming contemporary medical opinion evidence that opines that the person in question had capacity.

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Have Ontario’s Courts dispensed with Strict compliance with the Formalities of Execution?

Imagine that Johnny is dying. The doctors tell him to get his affairs in order. The patient’s only living relative is an elderly aunt whom he despises. Johnny wants to give all his money to his Church but, without a Will, by virtue of Ontario’s laws of intestacy that aunt will inherit everything. A lawyer prepares a Will setting out Johnny’s testamentary wishes. Johnny walks into the lawyer’s office, reads the will, and says it’s perfect. There is no doubt as to Johnny’s intent as the lawyer has taken the precaution to videotape the whole process. Johnny picks up the pen, is about to sign and dies. Is the Will valid in Ontario? It is almost certainly not valid, but there remains some doubt. If everyone knows Johnny’s true testamentary intentions what rationalization exists for not accepting the unsigned document as a valid Will?

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Dependant’s Relief, Support and Gifts Mortis Causa

Suppose Jane knew she was dying and gave the keys to her cottage to her favourite niece. Jane’s lawyer transferred title of the cottage to the niece. After Jane’s death, her husband, Mark started a law suit against the estate for support. He claimed to be a dependant and sought to have the capital value of the cottage deemed to be part of the net estate for purposes of ascertaining the value of estate. His lawyers claimed that the gift was invalid. Let’s take a moment to review Mark’s claim.

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deed

What is a Resulting Trust?

Situations arise where legal title may be in one person's name, but the courts presume there was a decision to create a trust so that the equitable or beneficial ownership really belongs to another. Let's take a look at the recent British Colombia Supreme Court case of Borkenhagen v. Kessler.

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Certain obligations can trump testamentory freedom

At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.

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Will an Ontario court vary a will when a parent disinherits an adult child?

At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.

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