When a parent passes away, siblings do not always pull together to support one another through the grieving process. Oftentimes, they make the grieving process harder on one another by fighting over their inheritances. There are a lot of reasons that these fights break out, and it isn’t always selfishness. Some people may feel they are entitled to a larger inheritance than other siblings because they spent more time and/or money taking care of the deceased parent. Others may feel one of their siblings took advantage of their parent when they were not in full mental capacity to make legal decisions.
The issues are complicated and some serious accusations can fly when inheritances are at stake. How is a judge supposed to determine whether a will should be upheld or changed? Is it possible to prove that a sibling or other family member took advantage of an elderly or terminally sick person in the last hours of their life? What happens when there are multiple wills and no one agrees which one was created last?
As complicated as these issues sound, the courts have developed sound strategies for sorting out the issues. The goal of the court is to determine what the deceased person most likely intended so their wishes can be upheld. One side will always be unsatisfied by the final ruling, but that is to be expected when family members disagree.
A. Testamentary Capacity
The Wills Act sets some technical guidelines that the court must follow when ruling on will disputes, but the courts have also established some additional requirements that are applied to the testator. The testator is the deceased person who completed the will, and these requirements are as follows:
1. Competent mental capacity. The testator had to know what they were doing when they agreed to the terms of the will. If they did not understand what they were doing and what they were agreeing to, the will cannot stand up as a representation of their will.
2. The testator could not have suffered from a mental disorder because disorders change the way they think.
3. The testator must have willingly made the choice to create the will and/or agree to the terms of the will. They must have acted in free choice, which means there was no pressure or force pushing them to make those final decisions.
When the courts determine whether a testator meets all of these requirements, they consider whether the testator possessed a “sound and disposing mind and memory.”
[ii] This means the testator knew that they were creating a will and fully understood what it means to create a will at the time they created the will. This also means the testator had full memory and knowledge of the assets they were assigning in the will, the people they were assigning those assets to, and the relationships of all of those people to one another and to the testator.
The testator’s knowledge and memories of the people involve extends to all people who would have a “moral claim” to the testator’s assets. If someone who would have a “moral claim” to the assets is left out of the will, then the testator must have still had full knowledge and memory of that person when they created the will. They should have had a sound reason for leaving them out of the will, so no one is left out simply because the testator’s memory failed.
The children and spouse of a testator have more “moral claim” to the testator’s assets than anyone else, and the court has special guidelines that apply when children and/or spouses are left out of a will.
While a testator must fully understand that they are creating a will to assign their assets to their loved ones, they are not required to understand the legal aspects of filing a will. It is enough to prove that they fully understood what they were doing and that they made their decisions willingly.
AS highlighted in Banks vs. Goodfellow, the health of a testator’s physical body is not nearly as important as the health of their mind. Even people riddled with physical disease and near the final days of their life often have the mental capacity to determine who they want to leave all of their assets to after their death.
The Law Society of BC explained this quite well when they said that the courts of British Columbia are “engaged in a balancing act which does not set the test of soundness of mind too high (and encourage attacks on the will) or too low (and allow absurd instruments from being accepted).”[i v]
The Estate Administration Act sets out guidelines to be followed when the court determines a testator does not meet the requirements for testamentary capacity. The will is not upheld in court, and the assets have to be distributed according to new guidelines.
Should You Worry about Incapacity?
Disputes that involve testamentary capacity often center on testators with Alzheimer ’s disease, dementia, and other diseases that affect memory. The older a testator becomes, the more likely they are to suffer memory lapses that could leave them vulnerable to undue influences of others.
This does not mean that you will have to argue on behalf of your loved one to prove they meet the requirements of testamentary capacity after their death. It also does not mean you can dismiss this concern if your loved one does not have a disease that affects memory. Those riddled with disease often keep a sound mind. Those without terminal disease or disease that affects memory can sometimes suffer from memory problems with age.
The Process of Challenging a Will
When you decide defend a will in court, you take on the role of a propounder. As a propounder, you defend the will in probate court and prove that your loved one did meet the requirements of testamentary capacity when they created the will. If the court determines that the will was created in compliance with the Wills Act, then you have a “rebuttable presumption” that will more than likely uphold the will in court. This is good, but the person challenging the will may still bring up reasonable suspicions to discredit that “rebuttable presumption.”
B. Understanding Suspicious Circumstances
The courts must look at each individual case to determine whether suspicious circumstances are at play, but all of the following circumstances are likely to be met with suspicion:
1. There is evidence that the testator suffered physical or mental deterioration at the time the will was created.
2. The will was created in secret.
3. The will includes dispositions considered “unnatural,” such as excluding a spouse or child.
4. Some beneficiaries are stated to receive substantial gifts that may raise suspicion.
5. The testator was known to be out of control of his/her personal affairs at the time the will was created.
6. The testator made drastic changes to the terms of the will. One will may be drastically different from more recent wills created by the testator.
7. The testator created the will while being isolated from family members, friends, and other loved ones.
8. The testator was physically, mentally, and/or financially dependent on the beneficiaries set to profit from the will.
Once the court decides that there are suspicious circumstances surrounding a will, the probate process will begin. The person defending the will, known as the propounder, will have the burden of proving that the testator was of sound mind and willingly created the will with the intention of having it upheld in court after their death.
If someone is challenging a will based on fraud or undue influence, that person will have the burden of proving in court that to a balance of probabilities the testator was forced in some way to agree to all or part of the will. The propounder has the right to defend against these claims and prove that no fraud or undue influence was involved in the creation of the will.
The courts will likely allow a will to stand if it can be shown that the testator had knowledge of the will, approved all contents of the will, and had testamentary capacity to authorize the will. In order for the courts to strike a will down, you have to prove that the testator did not have that knowledge, approval, or testamentary capacity.
C. Understanding “Undue Influence”
When someone convinces a testator to create and/or change their will, or a portion of it, through the use of power and domination, undue influence is at play. In these cases, the will is not considered a reflection of the testator’s true desires, since they were influenced to incorporate certain things into the will by force or “undue influence.” A coerced will is an invalid will.
Most people have some level of influence over those they love. The difference between that normal level of influence and “undue influence” is that undue influence goes to an extreme and causes a testator to go against their own desires.
For example, if a daughter asks her mother to include her in the will, that is not coercion. If that daughter threatens to stop taking care of the mother while she is alive if the mother does not award her a larger share of the estate, that may be considered “undue influence.”
Consider this brief list of factors that may meet the criteria for “undue influence:”
1. Violence or threats of violence
2. Confinement or isolation from others
3. Heavy persuasion of a testator living the final days or hours of their life
4. Mentally exhausting a testator to the point they agree to what is asked just for the sake of peace
When these circumstances are raised in court, the propounder has the right to defend the will in court. In order to keep the will valid, the propounder must prove that the testator willingly created the will while understanding fully what they were doing without any excessive pressure or persuasion.
There are a couple things that a testator and their loved ones can do to limit the risk of someone challenging the will’s validity in court:
1. The will can be created with a lawyer in person, with the testator present. Preparations through email or over the phone are more likely to be questioned.
2. Leave the testator alone with the lawyer for at least part of the will preparation. This allows the lawyer to speak to the testator freely without any pressure or influence of anyone else. The testator can speak their desires freely.
The involvement of a lawyer is important because a lawyer will refuse to draw a will if they feel the testator does not meet the guidelines for testamentary capacity. If the lawyer feels undue influence is at play, they will refuse to make the will valid for those reasons. A lawyer can be your best defense against challenges that arise around testamentary capacity later on.
You can take it one step further and bring a medical doctor to meet with the testator and the lawyer if you think there may be a later challenge to the will. The presence of a lawyer and doctor is no assurance that the courts will consider the will valid after the testator’s death, but it does put the odds in your favor.