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Difference between revisions of "Making and Executing a Will (16:III)"
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Making and Executing a Will (16:III) (view source)
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* Have testamentary capacity; | * Have testamentary capacity; | ||
* Intend to make a will; and | * Intend to make a will; and | ||
* Comply with the formalities in WESA. | * Comply with the formalities in ''WESA''. | ||
=== 1. Testamentary Capacity === | === 1. Testamentary Capacity === | ||
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==== a) Generally ==== | ==== a) Generally ==== | ||
The will-maker must have the requisite testamentary capacity. No person of unsound mind, who lacks testamentary capacity, is capable of making a valid will. Testamentary capacity is defined through the common law, not statute. The basic test is found in ''Banks v Goodfellow'', (1870) LR 5 B 549 (QB) at | The will-maker must have the requisite testamentary capacity. No person of unsound mind, who lacks testamentary capacity, is capable of making a valid will. Testamentary capacity is defined through the common law, not statute. The basic test is found in ''Banks v Goodfellow'', (1870) LR 5 B 549 (QB) at para 569; for a recent application of this test, see ''Serbina v Frejd'', (2016) BCSC 33 (CanLII), at para 81. | ||
According to the Goodfellow test, to have testamentary capacity a will-maker must understand: | According to the Goodfellow test, to have testamentary capacity a will-maker must understand: | ||
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The law presumes that a will-maker has the requisite capacity, if a will was duly executed in accordance with the formal statutory requirements after being read over to a testator who appeared to understand it. | The law presumes that a will-maker has the requisite capacity, if a will was duly executed in accordance with the formal statutory requirements after being read over to a testator who appeared to understand it. | ||
However, a student or lawyer taking instructions from the will-maker should nevertheless always assess the will-maker's capacity. This decision should be based on the will-maker's instructions, not any assertion from the will-maker that they are capable. To this end, avoid asking will-maker direct questions about capacity, such as | However, a student or lawyer taking instructions from the will-maker should nevertheless always assess the will-maker's capacity. This decision should be based on the will-maker's instructions, not any assertion from the will-maker that they are capable. To this end, avoid asking will-maker direct questions about capacity, such as “are you capable?” | ||
Some helpful lines of inquiry to assess capacity include: whether the will-maker can understand the nature of the testamentary act (that he or she is making a will), can recall the property, and can comprehend that he or she is excluding possible claimants under intestacy or through a wills variation claim. Delusions or partial insanity will not destroy testamentary capacity unless they directly affect testamentary capacity or influence the dispositions in the will. | Some helpful lines of inquiry to assess capacity include: whether the will-maker can understand the nature of the testamentary act (that he or she is making a will), can recall the property, and can comprehend that he or she is excluding possible claimants under intestacy or through a wills variation claim. Delusions or partial insanity will not destroy testamentary capacity unless they directly affect testamentary capacity or influence the dispositions in the will. | ||
==== c) | ==== c) Presumption of Validity ==== | ||
At common law, if a will is duly executed in accordance with the formal statutory requirements after being read by a testator who appears to understand the will, it is presumed that the testator possessed the requisite capacity and knew and approved the contents of the will. This presumption may be rebutted where “suspicious circumstances” exist (see below). | |||
==== d) | ==== d) Undue Influence ==== | ||
A will or a portion of it that is made as a result of undue influence is not valid. Undue influence is not mere persuasion, but is physical or psychological coercion. There must be capacity to influence and the influence must have produced a will that does not represent the will-maker’s intent. Section 52 of WESA now provides that, if it is shown that the will-maker was in a position where the potential for domination or dependence was present, the burden shifts to the party seeking to defend the will to show that the will was not procured through undue influence. A spouse, parent, or child, etc. may put his or her claims before the will-maker for recognition. This does not constitute undue influence unless it amounts to coercion. If the will-maker continues to be capable of making decisions freely, the advice or persuasion does not amount to undue influence. See Leung v Chang, 2013 BCSC 976. | |||
In order to challenge a will on the grounds of undue influence, the asserting party must show that the will does not represent the will-maker’s true intentions due to the coercion. If this can be shown, undue influence is presumed. The party that wishes to defend the will may rebut this presumption by showing that the will was a result of the testator’s own “full, free and informed thought”. See Stewart v Mclean, 2010 BCSC 64. Factors that can assist with rebutting the presumption includes proof that: | |||
a) No actual influence was used or there was a lack of opportunity to influence; | |||
b) The will-maker obtained independent legal advice or had opportunity to do so; | |||
c) The will-maker had the ability to resist the influence; or | |||
d) The will-maker had knowledge and appreciation about what he/she was doing | |||
The | Notwithstanding section 52 of WESA, an individual challenging a will on the basis on undue influence should have sufficient evidence to establish actual undue influence – in challenging the validity of a will, it may be insufficient to simply point to a relationship where there was a potential for the testator’s domination or dependence, without more. An allegation of undue influence is a serious allegation which should not be made lightly. See Ali v Walter Estate, 2018 BCSC 1032, Geffen v Goodman Estate, [1991] 2 SCR 353, Cowper-Smith v Morgan, 2016 BCCA 200. | ||
Allegations of undue influence should not be readily brought. A failed allegation of undue influence may attract severe cost consequences against the accuser. When one alleges undue influence, they are accusing another of being a fraudster. A failed allegation of fraud more readily justifies an award of special costs against the accuser. Therefore, a party who fails to prove a case of undue influence runs the risk of having to pay the full legal costs of the defending party. As such, undue influence should be carefully considered and investigated prior to commencing a court action. See Mawdsley v Meshen, 2011 BCSC 923. | |||
The will drafter should ensure that the will represents the will-maker’s intentions and that he or she is not being coerced into making the will or disposition against his or her wishes. This is especially relevant where the aged or infirm are concerned. | |||
==== e) Suspicious Circumstances ==== | |||
Suspicious circumstances may arise where a person who prepares a will also takes a benefit under it, though this is not exhaustive of all circumstances that raise a suspicion. The suspicion is that the will-maker did not know or approve of the contents of the will, and this suspicion must be removed before probate will be granted (see Riach v Ferris, [1934] SCR 725; see also more recent applications in Clark v Nash, (1989) 61 DLR (4th) 409 (BCCA) and Johnson v Pelkey, (1997) 36 BCLR (3d) 40 (SC)). | |||
Suspicious circumstances surrounding the making of a will is not a stand-alone ground to challenge the validity of a will; however, if a challenger of a will can demonstrate that suspicious circumstances existed when the will was drafted, this may shift the burden on propounders of the will to prove that the testator had knowledge and approval of the contents of their will when it was made. In Vout v Hay, [1995] 2 SCR 876 at para 25 [Vout], the Court held that suspicious circumstance may be raised by: | |||
(1) circumstances surrounding the preparation of the will, | |||
(2) circumstances tending to call into question the capacity of the testator, or | |||
(3) circumstances tending to show that the free will of the testator was overborn by acts of coercion or fraud. | |||
The Court in Vout held that where suspicious circumstances are proven, the burden of proof shifts to the propounder of the will to prove on balance of probabilities that the will-maker knew and approved of the will’s contents and had the necessary testamentary capacity. This problem is best avoided by ensuring the will is prepared by the will-maker or some independent party (e.g., a student or lawyer) and not by a beneficiary under the will or the spouse of a beneficiary. | |||
== B. Finding and Appointing a Personal Representative == | == B. Finding and Appointing a Personal Representative == | ||
