In a recent case, a court set aside a mother’s will, finding that it was made under suspicious circumstances and that she did not have testamentary capacity to make it.

What Happened?

The mother and father had four children together.

The father died on October 28, 2015, after a long illness. He did not have a will.

During the father’s illness, the mother was also suffering from cancer. Shortly after the father’s death, the mother was told that her cancer had spread and surgery was not a treatment option. She was told that her cancer was terminal and that she was a candidate only for palliative care.

At that time, the mother did not have a will or a power of attorney (“POA”).

The mother was affected physically, emotionally, and cognitively by the father’s death, her own terminal diagnosis, the disease itself and its treatment and management, and medication given for pain. She was hospitalized from late November to early December 2015.

In mid-December 2015, the mother’s son’s wife called three different lawyers, searching for one to prepare a will and POAs (for property and personal care) for the mother, and subsequently chose a lawyer.

The son’s wife obtained a “Client Information Sheet” (“CIS”) from the lawyer’s office. The CIS was to be completed by the client to provide the lawyer with information from which he could prepare a will or POA.

On December 22, 2015, the son returned the CIS, completed by his wife, to the lawyer. Although there was a place for the mother’s signature on the CIS, the mother did not sign it.

The lawyer used the CIS to prepare the mother’s will, POA, and a medical directive.

The mother was in the hospital from the evening of December 22 to December 24, 2015, to receive treatment for severe pain caused by her spreading cancer. The lawyer met the mother at the hospital on December 23 to sign the will, POA and medical directive. The son and his wife were also there, and they all discussed the documents together. The lawyer then asked the son and wife to leave, which they did; the mother signed all the documents.

The will named the son as estate trustee and sole beneficiary, and the POA named the son as sole attorney for property. The son’s wife was named as alternate estate trustee and attorney.

On January 4, 2016, the son used the POA to transfer the mother’s house to himself.

The mother died of cancer on January 8, 2016.


One of the mother’s other children brought an application to challenge the validity of the mother’s will and POA, alleging that the mother lacked testamentary capacity, was unduly influenced by the son and that there were suspicious circumstances surrounding the making of the will.


The court found that the formal requirements of due execution had been met because the will had been signed by the mother in front of witnesses.

With regards to suspicious circumstances, the court explained that five questions must be examined:

1) the extent of physical and mental impairment of the testator around the time the will is signed;

2) whether the will in question constitutes a significant change from the former will;

3) whether the will in question generally seems to make testamentary sense;

4) the factual circumstances surrounding the execution of the will; and

5) whether a beneficiary was instrumental in the preparation of the will.

In this case, the court found that suspicious circumstances existed surrounding the making of the will and the POA.

As a result, the legal burden fell on the son to prove that the mother had testamentary capacity and knew and approved of the will and the POA. This legal burden required the son to establish, on the evidence, that the mother:

(a)    understood the nature and effect of a will;

(b)   was able to recollect the nature and extent of her property;

(c)    understood the extent of what she was giving under the will;

(d)   remembered the persons that she might be expected to benefit under the will; and

(e)    understood the nature of the claims that may be made by persons she excluded from the will.

Taken as a whole, the court found that the son failed to meet his evidentiary burden to establish that the mother had testamentary capacity and that she had knowledge and approval of the will.

As a result, the will and the POA were both declared invalid, and the transfer of the house to the son was set aside.

Get Advice

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.