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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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{{LSLAP Manual TOC|expanded = wills}} | {{LSLAP Manual TOC|expanded = wills}} | ||
= | {{REVIEWED LSLAP | date= August 6, 2021}} | ||
To make a valid will, a person must | == A. Assessing Will-maker Competence == | ||
* 16 years of age or older; | |||
To make a valid will, a person must: | |||
* Be 16 years of age or older; | |||
* Have testamentary capacity; | * Have testamentary capacity; | ||
* Intend to make a will; and | * Intend to make a will; and | ||
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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 para 569; for a recent application of this test, see ''Halliday v Halliday Estate'', (2019) BCSC 554, at para 26. | 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc554/2019bcsc554.html?autocompleteStr=Halliday%20v%20Halliday%20Estate%2C%20(2019)%20BCSC%20554%20&autocompletePos=1 Halliday v Halliday Estate]'', (2019) BCSC 554, at para 26. | ||
According to the ''Goodfellow'' case and subsequent decisions, to have testamentary capacity a will-maker must: | According to the ''Goodfellow'' case and subsequent decisions, to have testamentary capacity a will-maker must: | ||
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==== d) Undue Influence ==== | ==== 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 their 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 for a framework for the burden of proof in litigation regarding contested wills. | 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 their 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc976/2013bcsc976.html?autocompleteStr=Leung%20v%20Chang%2C%202013%20BCSC%20976%20&autocompletePos=1 Leung v Chang]'', 2013 BCSC 976 for a framework for the burden of proof in litigation regarding contested wills. | ||
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 ''[https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc64/2010bcsc64.html?autocompleteStr=Stewart%20v%20Mclean%2C%202010%20BCSC%2064&autocompletePos=1 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; | 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 the opportunity to do so; | b) The will-maker obtained independent legal advice or had the opportunity to do so; | ||
c) The will-maker had the ability to resist the influence; or | c) The will-maker had the ability to resist the influence; or | ||
d) The will-maker had knowledge and appreciation about what they were doing. | d) The will-maker had knowledge and appreciation about what they were doing. | ||
Notwithstanding section 52 of ''WESA'', an individual challenging a will on the basis of 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. | Notwithstanding section 52 of ''WESA'', an individual challenging a will on the basis of 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1032/2018bcsc1032.html?autocompleteStr=Ali%20v%20Walter%20Estate%2C%202018%20BCSC%201032&autocompletePos=1 Ali v Walter Estate]'', 2018 BCSC 1032, ''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii69/1991canlii69.html?autocompleteStr=Geffen%20v%20Goodman%20Estate%2C%20%5B1991%5D%202%20SCR%20353&autocompletePos=1 Geffen v Goodman Estate]'', [1991] 2 SCR 353, ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc61/2017scc61.html 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 monetary 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. | Allegations of undue influence should not be readily brought. A failed allegation of undue influence may attract severe monetary 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc923/2011bcsc923.html?autocompleteStr=Mawdsley%20v%20Meshen%2C%202011%20BCSC%20923&autocompletePos=1 Mawdsley v Meshen]'', 2011 BCSC 923. | ||
The will drafter should ensure that the will represents the will-maker’s intentions and that they are not being coerced into making the will or disposition against their wishes. This is especially relevant where the aged or infirmed are concerned. | The will drafter should ensure that the will represents the will-maker’s intentions and that they are not being coerced into making the will or disposition against their wishes. This is especially relevant where the aged or infirmed are concerned. | ||
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==== e) Suspicious Circumstances ==== | ==== 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 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 ''[https://www.canlii.org/en/ca/scc/doc/1934/1934canlii13/1934canlii13.html?autocompleteStr=Riach%20v%20Ferris%2C%20%5B1934%5D%20SCR%20725&autocompletePos=1 Riach v Ferris]'', [1934] SCR 725; see also more recent applications in ''[https://www.canlii.org/en/bc/bcca/doc/1989/1989canlii2923/1989canlii2923.html?autocompleteStr=Clark%20v%20Nash%2C%20(1989&autocompletePos=1 Clark v Nash]'', (1989) 61 DLR (4th) 409 (BCCA) and ''[https://www.canlii.org/en/bc/bcsc/doc/1997/1997canlii2935/1997canlii2935.html?autocompleteStr=Johnson%20v%20Pelkey%2C%20(1997)%2036%20BCLR&autocompletePos=1 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 to the propounders of the will to prove that the testator had knowledge and approved of the contents of the will when it was made. In ''[https://www.canlii.org/en/ca/scc/doc/1995/1995canlii105/1995canlii105.html?autocompleteStr=Vout%20v%20Hay%2C%20%5B1995%5D%202%20SCR%20876&autocompletePos=1 Vout v Hay]'', [1995] 2 SCR 876 at para 25 [''Vout''], the Court held that suspicious circumstance may be raised by: | |||
a) circumstances surrounding the preparation of the will, | |||
b) circumstances tending to call into question the capacity of the testator, or | |||
c) 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 a 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, or the spouse of a beneficiary, under the will. | 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 a 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, or the spouse of a beneficiary, under the will. | ||
