Wills: Capacity Challenges And Claims

• Published date: 30 August 2022
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Lindsay Kenney LLP
• Author: Mr Scott Somers

In light of the recent case law from the British Columbia Supreme Court, there has been a trend regarding challenging a Will based on the concept of capacity (whether the Will-Maker understood what they were doing) and suspicious circumstances on the Will-Maker by a beneficiary.

This article focuses on the capacity to make a Will, but in terms of presumptions that the Will is valid, and how that presumption is challenged.

Capacity

Looking first at the case of Grace Estate, 2022 BCSC 1283, the court was required to reconsider its previous decision about the 'presumption of due execution;' namely when it is presumed that the Will-Maker had the necessary capacity to make the Will. By way of background, when the matter was first decided on April 26th, 2020, the court held

'At para. 59 of the Decision, I held that 'the evidence before the Court is not sufficient to prove that the Will was read by or to Ms. Grace.' I held at para. 60 that meant 'the propounder does not have the benefit of the presumption of testamentary capacity, and must prove both that she had capacity, and knew and approved of the contents of the Will.' At para. 61, I held that Ms. Paff had not established suspicious circumstances. I concluded at para. 62:

[62] Despite the absence of suspicious circumstances, I conclude that this application must be referred to the trial list for proof in solemn form of the Will. That is solely because the propounder has failed, on the evidence before the Court, to prove that Ms. Grace read the Will or had the Will read to her. In the resulting absence of the benefit of the presumption of testamentary capacity, the propounder must prove on a balance of probabilities that Ms. Grace had testamentary capacity and that she had knowledge of and approved of the contents of the will.

[Emphasis added.]'

Unfortunately, it was discovered after the judgement was given, that there was binding case law that should have been followed, and the father of the deceased was now asking the court to reconsider its decision. This application to reconsider was opposed, and the court does an excellent job in analyzing what is necessary for an 'Application for Reconsideration' to be successful. While it is worth a read for that aspect alone, that is not the focus of this blog.

On reconsideration, it was brought to the Court's attention the case law of Yen Estate v. Chan, 2013 BCCA 423, which stands for 'the proposition that the presumption of due execution applies where the...