League and Williams Lawyers

Tag: invalid wills

  • Invalid Wills: When a Simple Note Can Become a Valid Will

    Invalid Wills: When a Simple Note Can Become a Valid Will

    A BC woman found dead without any legal will written in her name left a hand-written note in her car explaining her final wishes for how she wanted her estate to be distributed. The question before the courts was whether this note could be pronounced a valid will or if this woman had died intestate (without a legal will). In BC, the criteria for what makes a document a valid will is rather straightforward. The will or testamentary document must satisfy these three criteria:

    • Must be in writing;
    • Must be signed at the end; and,
    • Must be properly witnessed.

    When the Courts Can Rule an Invalid Will as Valid

    An invalid will in BC can be revised by the courts to make the will effective.

    According to the Wills, Estates and Succession Act (WESA), the courts have the ability to make a curative provision to an invalid will. Essentially, this means that if a will does not satisfy the above requirements, the courts can “fix” the deficiencies of the will and validate it. A judge only makes a curative provision to an invalid will if they are satisfied that the will was authentic (written by the owner) and truly representative of the owner’s intentions at the time of their death (i.e. the document was meant to be their final will despite its deficiencies).

    Well, you’re probably wondering, what does this mean? Can a simple note be an effective will in BC? Let’s analyze the case mentioned above.

    The Case of the Hand-Written Note

    The woman had suffered with depression for years and her death was deemed to be a suicide. The note was located in her car, near where her body was found. The note outlined precisely how to distribute her estate upon her passing. It was evident that this was an attempt to create a valid will. Comparing this to the criteria of a valid will above, the note was in writing and signed at the bottom, but it was not witnessed by anyone. A will that is clearly violating one of these requirements is an invalid will in BC unless:

    • The court orders it as effective (curative provision);
    • It is a valid will in accordance with other laws; or,
    • It is a valid will under another provision of the WESA.

    The question now was whether this note could be deemed an effective will through a curative provision by the courts.

    Was the Note Written by the Owner?

    The woman’s spouse stated that this note was clearly her handwriting. One of her brothers also confirmed that it looked like her handwriting. The signature at the bottom was compared with her past signatures, such as on her bank cards and was a close match. There was no evidence that this note was written by someone else, and the judge ruled that this had been written by the woman – it was cured and considered a valid document.

    Did the Note Truly Represent her Final Intentions?

    The spouse, who lived with the deceased prior to her death, searched through all of her belongings to find any note or document representing a will. He did not find anything. There was also no will found under her name with the Vital Statistics Agency. Among other factors, the judge noted the following in determining if this note was her final intentions:

    • She explicitly calls the note her will;
    • Even though it was not witnessed, it was likely not witnessed because of the circumstances (being written in moments of contemplation of taking her own life);
    • The note was found in her car – showing an intention for it to be found upon her death;
    • The note was dated the same day she went missing – it was written close to her time of death;
    • The language used indicated conclusiveness; and,
    • There were no allegations of undue influence or incapacity when she wrote the note.

    The judge determined that this note was a true representation of her final intentions. Because the note was deemed to be authentic and truly representative of her final intentions, the note was ruled fully effective as a legal will.

    This case demonstrates the courts ability to honour a person’s final wishes even when proper will-making procedures were not followed. If the courts had ruled that this note was invalid and could not be revised, then the woman would have died intestate and her estate could only be given to either her mother or spouse.

    For more information, read our page on when a will is considered invalid.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Invalid Wills and Suspicious Circumstances: Undue Influence

    Invalid Wills and Suspicious Circumstances: Undue Influence

    Wills in BC can be ruled invalid if a claimant can prove the testator was under undue influence. Undue influence is an influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality, does not, and expresses something else which he or she did not really mean.

    What is Considered Undue Influence?

    It’s difficult to prove undue influence in BC. To satisfy the criteria of undue influence, the influence must be so significant that the testator’s wishes were completely overpowered. Suggestions, persuasion and advice are all allowed in BC and are not considered forms of undue influence. A successful claim needs to have proven coercion that prevented the will-writer from exercising their free will. This can be in the form of psychological, financial and physical pressure – it is not limited to threats or terrorization. Even when undue influence has occurred, it can be difficult to establish to the degree required by the courts. It can be difficult for the courts to distinguish between undue influence or simple persuasion, which is allowed in BC.

    The Burden of Proof

    The presumption of undue influence is not a provision in all of Canada. In Ontario for example, they do not have a doctrine similar to this.

    The burden of proof is on the claimant (the person challenging the will) to demonstrate the will-maker was unduly influenced. However, the burden of proof can shift to the defendant in certain instances. If the claimant can show that there was a special relationship established between the will-maker and the person whom the will-maker was dependent on, there is a presumption of undue influence. This means that the defendant now has the onus of proving that there was no undue influence. In order to establish this presumption under the structured approach applied by BC courts, the evidence provided must show that there existed a relationship of influence at the time of will-writing, and that some of the disposition outlined in the will requires explanation or does not seem characteristic of the will-writer’s wishes.

    For example, when the will-maker is a parent who is dependent on one of their children for their day-to-day care. The parent might choose to give a disproportionately large share of the estate to their care-taking child. Due to their relationship, the child must prove the gift wasn’t made under undue influence if a claim is raised. If they can’t do this, the court can cancel or reduce the gift, or even rule the will invalid.

    Examples of Undue Influence Claims in BC

    Some of the most common undue influence claims involve people who have entered an elderly person’s life very recently and been given a large portion of the estate. This can be suspicious, as people tend to give their estate to family longtime friends. Another frequent case is children who are relentless in having a parent give them a larger portion of the estate than their siblings. Parents are put in a position where they see no option other than to honour this child’s request, out of fear of ruining their relationship. This is recognized as a form of undue influence.

    The case of Tribe v Farrell (2003) demonstrates how undue influence can be proven solely through fear and psychological factors. An elderly man he feared his caregiver would leave him if he didn’t give her his house. In the end, he left more of the estate to the caregiver than his own son. Due to this special relationship, the caregiver had to prove she did not unduly influence him. Ultimately, she failed to illustrate to the court that she did not unduly influence the will-writer. It was held that the second draft of his will which listed her as a beneficiary was invalid.

    A Recent Example

    Undue influence can be exerted both physically and psychologically.

    In a recent BC Supreme Court case a woman wrote a new will while terminally ill in the hospital. The new will gave more of the estate to her common-law spouse and his grandchildren, reducing her godchildren’s share of the estate. The godchildren elected to file an undue influence claim.

    The lawyer who helped prepare the new will described her as being very confused about why the lawyer was visiting and what they were doing on the day the will was drafted. The lawyer explained that the woman could engage in conversation, had a clear memory of some things, but had trouble recalling the date and where she was. The woman also could not give the exact names of her godchildren. It was clear that the woman was not legally capable of creating a will at the time.

    The Opinion of the Court

    On the facts, it seemed that the woman was persuaded by her spouse to make these changes to her will. The godchildren couldn’t prove undue influence as there wasn’t evidence to indicating that the will didn’t express her wishes. There was no special relationship in this case, as the woman was not dependent on her spouse or his grandchildren. The circumstances did not adequately satisfy the criteria to establish a presumption of undue influence against her spouse or his grandchildren.

    The judge had to determine to what extent the woman’s mental state impacted her ability to write a valid will, and if she was unduly influenced by her spouse due to her mental incapacity. Even though the woman did not demonstrate mental clarity at the time the new will was written, the court held that, on the balance of probabilities, she truly intended to make these changes to her will. The case was dismissed as there was no direct evidence of undue influence.

    In only the most extreme and conclusive cases will a court revise- or vary– a person’s will. The process by which this type of claim is investigated and decided by the courts is designed to ensure that will-maker’s true intentions are respected after their death. If you think that someone you loved was under undue influence during their will making, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Invalid Wills and Suspicious Circumstances: Knowledge and Approval

    Invalid Wills and Suspicious Circumstances: Knowledge and Approval

    A will must have knowledge and approval of the terms of their will in order for it to be valid. They must also have had testamentary capacity when drafting it. In BC, lack of knowledge or approval of a will is grounds for ruling the will invalid. The courts presume that a duly executed will is valid. When disagreements arise, people may wonder what knowledge and approval of a will really means.

    Essentially, the will-writer must understand the terms of the will, and they must know what they are signing. The will-writer must understand the general nature of what they are giving away. These are mandatory requirements for a valid will in BC. Some circumstances that may indicate the will-writer did not have the proper knowledge and approval of their will include:

    • Physical or mental handicaps restricting the ability to see or hear,
    • Language barriers,
    • Significant changes from previous wills in the final moments of the will-writer’s life,
    • Beneficiaries being heavily involved in writing the will,
    • Dependency on a beneficiary, physically and/or emotionally,
    • Isolation from close friends and family, or;
    • The will-writer not having read the will.

    Challenging a Will for Lack of Knowledge and Approval

    Knowledge and approval is only one requirement (of many) for a will to be valid.

    In BC, there is a presumption of validity for will-writers. This means that people who challenge a will must rebut the presumption. However, the burden of proof can be passed on to the defendant if the will-writer was unduly influenced or not aware of the terms of the will. Further, if a claimant can demonstrate suspicious circumstances surrounding the drafting of the will, the burden shifts to the defendant. Suspicious circumstances are circumstances where it is questionable if the will accurately expresses the mind of the will-writer.

    When suspicious circumstances arise, the defendant must prove that the will-writer understood and approved of their will. If the defendant can prove this, the court may rule the will valid, dismissing the challenge.

    Lack of Knowledge and Approval Example

    A common example of a client who may lack knowledge and approval of their will is an elderly, recent immigrant to Canada who is not fluent in English, or struggles with translation of legal language. A lawyer prepares their will, but they may not fully understand the will’s contents. Regardless, they proceed to sign the will when it has not been written exactly as they intended.

    A family member later chooses to challenge this will, bringing up the possible impact of the language barrier on the will-writer’s understanding of the document. The burden of proof is then on the executor of the will, not the challenging party, to prove that the will-writer understood and approved of the document regardless of the language barrier. Another important examples arises where the will-writer does not understand the nature and extent of property they are giving away.

    Reminders for Beneficiaries

    While in some cases it’s clear whether or not the will-writer understood and approved of their will, that is not always the case. There is no clear-cut definition for knowledge and approval, and it can be up to the defendant to prove the validity of the will in cases of suspicious circumstance. The circumstances, the will-writer’s previous wills, and even their behaviour and medical history can play an important role in determining to what extent knowledge and approval can be established.

    You can challenge a will if you believe you were wronged, especially due to a lack of knowledge and approval. Contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.