Setting Aside A Will: Incapacity Or Undue Influence

There are numerous circumstances that merit a court order that a last Will and Testament not be admitted for probate. The two most common circumstances that are advanced are where allegations exist that the deceased did not have the requisite legal capacity to execute the Will and, secondly, where allegations are made that the deceased was unduly influenced to execute their Will.

If the capacity of the deceased is successfully brought into question, then the executor is required to establish that the deceased had testamentary capacity at the time that the Will was executed.i To meet this requirement, the executor must establish that, at the time of signing the Will, the deceased understood and appreciated:

1) the nature and extent of their assets;

2) who would reasonably expect to share in their estate;

3) the effects of the terms of the Will;

4) the relationship of the foregoing factors, to some degree, as a whole; and

5) a desire to dispose of the assets.ii

If an allegation is put forward that the deceased was unduly influenced to execute their Will, then the person making that allegation has the burden of proving undue influence.iii For inter vivos gifts, or gifts given during a person's lifetime, undue influence may be established either by producing actual evidence of undue influence or by establishing that a presumption of undue influence applies.iv The presumption of undue influence does not apply to testamentary undue influence, and therefore, evidence of actual undue influence must be adduced.v

To be actual undue influence, the influence must have resulted in the Will not reflecting the deceased's mind.vi There should be evidence of manipulation, coercion or an abuse of power.vii Generally speaking, the Court will need to be satisfied that there is more than a "lack of independence".viii

In a recent appearance before the Saskatchewan Court of Appeal, the author, Curtis J. Onishenko, sought to rely upon the doctrine of righteousness to set aside the Will on behalf of his client. The doctrine of righteousness had not yet been considered in a reported Saskatchewan decision despite being traceable to the Supreme Court of Canada.ix In consideration of this historical doctrine, in obiter, the Court of Appeal theorized it as requiring a person to justify the "righteousness" of a transaction when that person was "instrumental" in the drafting of the Will and received a benefit from the Will greater than other beneficiaries, or, under any...