In a recent Alberta Court of Appeal decision, the court dismissed a grandchild’s will challenge application, finding that her mere suspicions did not constitute proper evidence to support her claim.

Testator Disinherits Two Grandchildren

The testator passed away on October 28, 2016 at the age of 96. She had six children.

During her lifetime, the testator prepared three wills. Her July 21, 2010 divided her estate equally among her six children and provided that if any of her children should predecease her, then their surviving children (her grandchildren) would take that child’s portion of the estate equally.

The testator’s second will of June 12, 2014 was substantially identical to her first 2010 will, but only named five children as residual beneficiaries, because one of her daughters had passed away. It also included a clause that if any of the named five children should predecease her, the surviving children of that child (her grandchildren) would take that child’s portion of the estate equally. The effect of that change was to disinherit her deceased daughter’s two children (two of her grandchildren).

The testator’s third will of February 2, 2016 was substantially the same, but changed her personal representative.

On May 11, 2018, one of the two disinherited grandchildren (the “grandchild”) filed an application challenging the 2016 will. She alleged suspicious circumstances surrounding both the preparation and execution of the wills of June 12, 2014 and February 2, 2016, including undue influence. She claimed that one of the testator’s other daughters had manipulated the testator into changing her will due to a personal vendetta against the deceased daughter.

In response, the estate filed an affidavit by the testator’s lawyer who helped her draft her will. He claimed that the testator had been very clear that she intended to exclude the two grandchildren because her son-in-law (their father) had enough money to provide for them. 

Lower Court Dismissed Grandchild’s Application

The chambers judge dismissed the grandchild’s application pursuant to the Surrogate Rules to set aside a grant of probate of the testator’s 2016 will. The judge found that the grandchild’s claim did not meet the evidentiary burden required, stating:

“All of [the grandchild]’s evidence comes from [the grandchild]. It consists of her observations, thoughts, opinions, interpretation and surmises regarding events in [the testator]’s family following the death of [her mother]. […]

[The grandchild]’s allegations regarding nefarious conduct on [the other daughter]’s part to manipulate or coerce [the testator] into shutting [her] out of [the] will consist of nothing more than suspicion, innuendo and speculation. [The grandchild]’s belief in its truth, however sincere, [does not] make it acceptable as evidence.”

In fact, the grandchild’s only “corroborative” evidence consisted of a brief videotaped conversation between her and her father and her own two affidavits, while s. 11 of the Alberta Evidence Act, reads:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence.

The grandchild appealed that decision to the Alberta Court of Appeal.

Court of Appeal Dismisses Appeal

The court began by citing the Supreme Court of Canada’s Vout v. Hay, in which the court stated that upon proof of a will being duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, “it will generally be presumed that the testator knew and approved the contents and had the necessary testamentary capacity”. The court then explained that such presumption of validity is rebuttable and casts an evidentiary burden on the party challenging the validity of the will. Finally, the court stated that material evidence of corroboration must be independent of the opposite or adverse party, and must help “the judicial mind appreciably to believe one or more of the material statements or facts deposed to by the party”; it must materially enhance the likelihood of the truth of the adverse party’s statement.

After reviewing the grandchild’s evidence and the chambers judge’s decision, the court concluded:

“All of [the grandchild]’s evidence, as accepted by the chambers judge, came from herself. We see no substantial material evidence that might appreciably help the judicial mind in support of [the grandchild]’s current concern or suspicions over undue influence, fraud or mistake. All of the evidence points in the opposite direction. We agree with the chambers judge that [the grandchild]’s concerns are “nothing more than suspicion, innuendo and speculation.” It is the very type of evidence that s. 11 was enacted to guard against. This appeal must fail on the application of s. 11 of the Alberta Evidence Act alone.”

As a result, the court held that the determination by the chambers judge was fair and reasonable and dismissed the appeal.

Get Advice

DBH Law recognizes that there continues to be a concern in Alberta about the spread of COVID-19. We have implemented several measures to reduce the risk and impact to our employees, clients and the community-at-large.

Please be aware that we are prepared to initiate business continuity protocol for remote work and communications. It is our priority to ensure business continuity for our clients while ensuring the safety of our people. We recognize that the outbreak of COVID-19 is an unprecedented situation globally and we wish to assure you DBH Law is equipped and prepared to maintain and continue business services to our clients during this pandemic.

The highly-experienced and strategic Calgary estate lawyers at DBH Law can help you draft or update your will to reflect the needs of your family and your estate, no matter its size or complexity. Our responsive and concise approach to our work makes the process of will and estate planning easy for our clients.

We take pride in the relationships we have built with our clients, and the opportunities we have to represent their legal needs as they grow and evolve. We understand your need to provide for your family and loved ones while also minimizing the taxation and chances of litigation your estate may face. We can be reached by phone at 403.252.9937 or online and look forward to the chance to learn about what is important to you, and how we can help you achieve that.