The recent Saskatchewan Queen’s Bench decision in Bell v Bell, 2022 SKQB 198 is an example of a Will challenge which did not succeed in raising a genuine issue for trial.
Bell reminds us that Courts will generally require firsthand evidence of incapacity or of coercion before the Court will subject a Will to the expense and delay of trial. If Courts consider the challenger’s evidence to be more circumstantial or unrelated in time to the specific signing of the Will, the Courts may find that there is no genuine issue.
The factual background in Bell can be summarized as follows:
- This will challenge was in relation to the Estate of Laurette Josephine Bell;
- On January 8, 2020, at the age of 86, Laurette executed a will (“Will”). After her death, one of her sons, Wayne, wished to have the Will proven in solemn form. Solemn form refers to the process of proving the validity of a Will through actual firsthand evidence in a trial process;
- In the Will, Laurette named two of her sons, Donald Bell and Grant Bell, as joint executors. The Will made two specific bequests and then proceeds to instruct that the rest of Laurette’s estate was to be divided equally among her children for their own use absolutely;
- Immediately following that bequest, however, the Will provided that Laurette’s son, Wayne, the applicant, was “not to receive anything from my estate nor any of his issue”;
- Laurette subsequently died on August 18, 2021, at the age of 88;
- Wayne sought to challenge the validity of Laurette’s Will and alleged that Laurette had been subjected to undue influence and/or had lacked capacity at the time the Will was executed;
- In Saskatchewan law, a will challenge requires a two-stage process. In the first stage, the challenger must first show that there “is a genuine issue to be tried.” That is, the applicant must generally offer evidence that, if accepted at trial, would tend to negate testamentary capacity or establish undue influence. Only if this genuine issue is raised at the first stage will a trial process (second stage) be legally required to actually determine credibility and make final rulings on whether the specific will is valid.
- In relation to testamentary capacity, Wayne suggested that a genuine issue was raised by the cumulative effect of the below factors:
- Laurette was elderly (87 years old at the time the Will was executed);
- Laurette had been forgetful and confused, as allegedly evidenced by her erroneous insistence that a historical loan to Dawn (the daughter of Wayne) remained outstanding (when Wayne alleged, and it did appear on the available evidence, that said the loan had been paid already years earlier); and
- That Laurette was forgetting names and had gotten lost in the mall on one occasion.
- In relation to the issue of alleged undue influence exercised on Laurette, Wayne alleged that Grant, Don and Garth (other sons of Laurette) were communicating disparaging and false statements to Laurette about Wayne and Dawn. Wayne essentially suggested that such poisoning had caused Laurette’s free will to be overburdened to the point that cutting Wayne out of the Will was not Laurette’s own voluntary act.
The issue, as in most will challenges, was whether or not the challenger had raised a genuine issue requiring a trial (in relation to either capacity or coercion).
Court ruling in Bell:
The Court ultimately held that Wayne had not raised a genuine issue.
First, on the issue of capacity, the Court held:
- The fact that Laurette was 87 years of age was not enough to raise a genuine issue. The Court held that some 87‑year‑olds do lack testamentary capacity, others do not. Age does not negate testamentary capacity;
- Second, the Court did not find that a genuine issue of capacity was raised merely by the fact that Laurette may have mistakenly thought that a 20 year old loan to Dawn, remained unpaid. The Court held that the issue was not material. If the loan had been repaid in full and if Laurette was mistaken in the belief that the loan was still outstanding, did not itself lead to the conclusion that Laurette was not competent to execute the Will on January 8, 2020. The Court held:
- 52 …Although Laurette may very well have been wrong about the repayment of the loan, this circumstance does not compel the inference that she was incompetent or lacked testamentary capacity. Many people forget details of the past and the fact that one may have been mistaken does not mean that she was incompetent or was not capable of executing a valid will. Even assuming for the moment that a trial of an issue was ordered and the applicant was able to establish this point, it does not amount to “some evidence which if accepted at trial would tend to negative testamentary capacity”. See Dieno at para 32 and Kapacila at para 22.
- Similarly, the fact that Laurette may have forgotten some names and may have gone in the wrong direction after leaving a certain business on one or more occasions does not constitute evidence that would negate testamentary capacity.
Second, the Court held that Wayne had no firsthand evidence of undue influence in relation to this Will:
- The Court held that the theory of Wayne was that Grant, Don and Garth somehow fed Laurette misinformation about the misappropriation of funds which caused Laurette to wrongfully view Wayne in a negative light. However, the Court held that “even if Laurette was wrong about her presumptions and perceptions, there is no evidence that there was influence that would have overburdened her will.” (para 56)
- The Court also noted that there was a crucial difference between:
- Merely alleging that there was undue influence or circumstantially that there must have been an undue influence because of what Laurette did; and
- Offering actual firsthand evidence which is potentially capable of establishing undue influence in relation to a Will.
Ultimately, the Court in Bell held that no genuine issue had been raised on Wayne’s evidence.
Rather, the uncontradicted evidence before the Court was that Laurette went to her lawyer and provided the lawyer with precise, cogent, clear instructions to remove Wayne as a beneficiary. The lawyer who drew the will was a very experienced lawyer in estates, took Laurette’s instructions and found no cause for suspecting undue influence or a lack of testamentary capacity.
Bell is an example of a case where the challenger no doubt had genuine concerns about what caused his mother to remove him from the Will. Such is a natural emotional reaction. That said, Bell reminds us that circumstantial concerns about unexplained actions by a testator (even if the testator’s actions are hurtful and shocking to a disinherited family member) are not the same as first-hand evidence, actually capable of establishing incapacity or actual coercion on the date of the signing of the Will.