Category: WILL CHALLENGES

Drafting a will is one of the most important steps a person can take when creating an estate plan. No matter how large or small your estate is, a properly drafted and valid will is the best way to ensure that your property is distributed as you see fit. However, even the best wills can be challenged by people who believe they have a financial interest in an estate. However, just because a will can be challenged does not mean that any such challenges will be successful, even if there are some omissions in the will. This is demonstrated in a recent decision from the Court of Appeal for Ontario.

The Will

The deceased in the matter was an 87-year-old mother who executed a codicil (change) to her will on August 18, 2014. The codicil left the residue of her estate to one of her sons (“L”), leaving out her other son (“F”). The original trial provided evidence to suggest that the mother’s motivation was not a lack of love for F, but a belief that he was in a better overall financial position than L and leaving the residue of the estate to L would even things out between the two brothers.

The original trial lasted 10 days, with the judge ruling in favour of L after determining L had satisfied his burden of proving due execution of the codicil and knowledge of its contents. He also met the burden of proving testamentary capacity and rebutting any inference of coercion or undue influence.

The Appeal

F appealed the trial judge’s decision, arguing the judge misapprehended the evidence and erred in finding the mother had knowledge of the contents of the will when she executed the codicil. His position was that in order to have testamentary capacity, a testator must be aware of the value or magnitude of the estate. L argued that the trial judge found the mother to have had a general knowledge of her assets but not a deep enough level to satisfy testamentary capacity.

However, the court did not side with L, finding that the mother had demonstrated knowledge of her assets as detailed in the evidence at trial. The handwritten notes of her lawyer’s assistant as well as her lawyer’s statements that she was knowledgeable with respect to her assets were enough to satisfy the court.

Even if the mother did not demonstrate knowledge of her assets, the court stated that it’s not necessary to do so. A 2013 decision from the Court of Appeal for Ontario stated that “A competent testator does not have to know the precise makeup of her estate. She only need know in a general way the nature and extent of her property.

If you are considering filing an application to challenge a will, contact the estate lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

Creating a valid will is one of the most important steps someone can take when undergoing estate planning. Unfortunately, even if a will has been created, they can be challenged by people who believe they should have been named in the will, perhaps suggesting that the will is not valid. In a recent case from the Court of Appeal for British Columbia, the court looks at a situation where an original will could not be located, and the sister of the deceased attempted to have the deceased’s partner revoked as beneficiary.

The background

The deceased (“J”) died unexpectedly on April 14, 2014. In a will she executed in 2011, she designated her same-sex partner (“R”) as her sole beneficiary. However, the original copy of the will was not ever found, and a trial judge declared J to have died intestate. R argued before the trial judge that even without a will, she should be considered the sole beneficiary due to the “marriage-like” relationship between her and J, who had no children.

One of J’s sisters (“Q”) argued that while J and R had at one time had a marriage-like relationship, it had since ceased to be one, and as such, R should not be considered a spouse under the provinces Wills, Estates and Succession Act.

The trial judge conducted an analysis and determined the relationship between J and R remained marriage-like at the time J died, and recognized R as the sole beneficiary. Q appealed the decision.

The appeal

The court first looked at the history of the relationship. They met in 1982 and began a romantic relationship one year later. They purchased a condo together in 1996 and lived together in a romantic relationship. In 2000, R explained that she wished to have children and was considering entering into a heterosexual relationship. The couple continued to live together, but stopped being sexually involved. Both parties eventually entered into romantic relationships with men, but later broke them off.

J and R began to see themselves romantically again in 2010 but did not ever live together again.

The court examined the judge’s examination of whether the parties re-entered a marriage-like relationship when they got back together in 2010, finding “the relationship did not end but rather struggled through and endured a serious crisis.”

The court found that the trial judge took the proper broad and holistic approach in considering whether the relationship was terminated, explaining “This was a case in which (R) clearly met the criteria for becoming a spouse under s. 2(1)(b) of the WESA. It was a case where there was some equivocal evidence that might have led a judge to an inference that the marriage-like relationship was terminated in 2010, but the judge did not draw that inference. It was also a case where the post-2010 evidence showed continued emotional interdependence, mutual commitment, and attachment in the years that followed.”

As a result, the appeal was dismissed.

At Derfel Estates Law, we regularly represent clients in all types of estate litigation, including in will challenges, and pride ourselves on providing our clients with personalized and transparent services. Contact us if you are considering filing an application to challenge a will so we can help you determine your options and rights. We can be reached online or by phone at 416-847-3580.