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Recent Blog Posts
Suspicious Circumstance Grounds for Challenge
An 81 year old man was murdered. Prior to his death a young woman friend, with whom he had some sort of relationship, contacted a law office and instructed a legal secretary to draft a new will for the man. The Will provided for this young lady to be the sole Estate Trustee and major beneficiary. This was a big change from his old Will which left the bulk of his estate to his family. When the testator went to sign the new Will and had questions about its terms, the young girl coaxed him into signing it, assuring him that the terms reflected their previous discussions. While it was determined that she played no role in the murder, during the murder investigation she lied about her relationship with the testator and her role in instructing the law firm about the terms of the Will.
One of the basis for challenging the validity of a Will is the allegation of undue influence. If there are suspicious circumstances surrounding the testator then the normal presumption, that a Will is valid if properly executed, is rebutted and it is up to the person claiming that the new Will is valid to prove that there was no coercion or undue influence on the testator.
In this instance the disinherited family suggested that the young girl's lies to the police about her involvement in giving instructions for the Will was suspicious enough to invalidate the new Will. The Trial Judge disagreed and the Supreme Court of Canada affirmed the Trial Judge's opinion.
The Court found that even if there are suspicious circumstances, in this instance the Will was executed properly and the deceased made the Will exactly as he intended.
CONCLUSION
There is an old joke that death is not the end. It is the beginning of estate litigation. Despite the temptation to jump to conclusions, it would be a mistake to view this canvassing of a legal issue of significance as legal advice. It is always advisable to speak to a qualified lawyer to determine if circumstances are sufficient to warrant suspicions that fraud, coercion or undue influence played a part in the testator changing his Will.
Vout v. Hay 1995 CarswellOnt 186, 7 E.T.R. (2d) 209, 125 D.L.R. (4th) 431, [1995] 2 S.C.R. 876, 183 N.R. 1, 82 O.A.C. 161
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