When it comes time to prepare an estate plan, it is always best practice to include as much detail as possible, particularly in your will, in order to clearly express your wishes and avoid ambiguity or uncertainty. However, even in cases where extensive details have been specified, questions may still remain.

In a recent decision from the Court of King’s Bench of Alberta, a mother had died and had left her estate to her children, however, the Court was asked to determine whether one of the deceased’s children survived long enough to entitle his estate to inherit his share.

Mother leaves estate to children in equal shares

In Wilson v Wilson Estate, the matriarch of the family (“RW”) passed away on September 10, 2021. She had been predeceased by her spouse, and her will left the residue of her estate to her children in equal shares. However, the will contained a survivorship clause which stated that “[t]he gift or share to which any beneficiary may be entitled is subject to the condition that the beneficiary shall survive me for fourteen (14) days.”

Unfortunately, “GW”, one of RW’s children, died two weeks after his mother. GW left behind a widow (“CW”), and though they had been separated for many years, they had never divorced. CW, therefore, brought an application seeking to become the personal representative of GW’s estate. Although they no longer lived together as a couple, GW’s will provided that CW was to be the beneficiary of the residue of his estate. In the application, CW asked that she be given the share of GW’s mother’s estate that he would have otherwise received. The respondents in the matter was RW’s estate, which was represented by RW’s children from prior relationships who questioned the validity of his will, and whether GW lived long enough after his mother’s passing to justify his estate receiving a portion of his late mother’s estate.

As such, the Court was asked to determine:

  • whether GW lived long enough after his mother’s death for his estate to receive a share of his late mother’s estate;
  • whether there are sufficient suspicious circumstances surrounding GW’s will that lead to it not being presumed valid; and
  • whether CW established that the purported will was valid.

Did GW live long enough after the death of his mother for his estate to inherit?

The Estate’s position was that GW did not survive his mother for the requisite 14 days, and as such, his estate was not entitled to receive an inheritance from his mother’s estate. GW was found in his kitchen on the morning of September 25, 2021, which was 15 days after the death of RW. GW’s roommate called 911 and despite efforts to revive him, GW was pronounced dead. The respondents argued that GW could have died the night prior to him being discovered by his roommate and further claimed that CW’s failure to call the roommate as a witness to confirm the time of death opens some doubt as to the exact time of death.

The Court was quick to note that it did not find these arguments compelling and indicated that even if GW’s roommate was called as a witness, there was no evidence to suggest that they had any training or expertise that would help the Court decide whether GW died in the morning or sometime during the night prior. There were no notes related to rigor mortis or liver mortis from the people who attended the scene. Furthermore, the Certificate of the Medical Examiner and the autopsy report both state that GW’s date of death was September 25, 2021, with nothing in the report suggesting that the date of death was in question. Finally, the province’s Certificate of Death also recorded GW’s date of death as September 25, 2021. The Court was satisfied that “the authors of those three documents used the date (GW) was found as his date of death without further investigation.” Furthermore, the Court was not willing to speculate on any alternatives, especially without evidence. Accordingly, the Court ruled that GW did survive his mother long enough for his estate to inherit from his mother’s estate.

Are sufficient suspicious circumstances surrounding GW’s will?

The respondents argued that there were suspicious circumstances surrounding GW’s will because GW had told others he did not have a will. Furthermore, the respondents argued that GW had removed CW as a beneficiary on his life insurance, and that an expert forensic document examiner raised concerns about the handwriting and other properties of the will. The Court referenced various principles that had been established by the Supreme Court of Canada for consideration in cases of suspicious will circumstances, including:

  • The propounder of a will has the burden to establish due execution, knowledge and the approval, and testamentary capacity;
  • Notwithstanding that burden, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity;
  • In the presence of suspicious circumstances, the above presumption no longer applies, and the proponent of the will reassumes the legal burden of proving knowledge and approval. (Similarly with respect to suspicious circumstances surrounding testamentary capacity; however, that is not an issue in this case); and
  • With respect to allegations of fraud or undue influence, the burden of proof on a balance of probabilities lies with those attacking the will.

Court finds GW had valid will

The Court noted that the respondents argued that GW had told people, including a solicitor and one of his son’s, that he did not have a will, however, it also acknowledged that making this statement does not necessarily mean that an estate plan is not in place. People can forget they have a will, but that does not make it non-existent. The Court was also not able to make an inference that because GW had removed CW as a beneficiary of his insurance, that he also intended to leave her out of the will.

Ultimately, the Court determined that the will CW had was valid, and that the inheritance GW was to receive from his late mother’s estate should go to her in accordance with the will.

Let the Estate Planning Lawyers at DBH Law Help You Put an Estate Plan Into Place

The experienced estate planning and estate administration lawyers at DBH Law in Calgary provide reliable and practical legal advice on various matters, including estate planning, estate administration, and various estate planning tools including power of attorney and personal directives. If you have questions about estate planning strategies or want to amend your existing will, contact us online or by phone at 403.252.9937 to learn how we can help you.