In a recent Court of Queen’s Bench of Alberta decision, a court had to determine whether a mother’s will was valid after four of her children challenged its validity.
Testator Leaves Daughter Out of Will
The testator died on October 17, 2015 at the age of 76. She was predeceased by her husband, with whom she shared nine children, in 2002.
In August 2009, the testator had made a will that divided her estate equally among all nine children and a grandson.
The estate was large, reporting assets of approximately $9 million.
Subsequently, in 2010, the mother and her third-youngest daughter had a falling out. As a result, in December 2010, the testator made a new will expressly revoking the 2009 will, appointing another child as executor and dropping the daughter as a beneficiary.
The testator did not make another will or change the 2010 will before her death.
In July 2017, the executor applied for a grant of probate for the 2010 will, which was granted in August 2017.
In February 2018, four of the other children, including the daughter (the “challengers”), filed a notice of objection challenging the validity of the 2010 will, alleging undue influence, incapacity and suspicious circumstances, as well as contesting the appointment of the executor. The application also contested the beneficiaries of the estate, claiming that leaving the daughter out of the will was contrary to the wishes of the testator. The challengers also attacked certain from-estate withdrawals made by the executor, sought an accounting and, as warranted, an order for repayment of any offside withdrawals.
The challengers did not serve their objection on the executor, who discovered it by chance in or around February 2020.
In April 2020, the executor applied to court to have the objection dismissed or struck out. The executor also asserted testamentary capacity for the testator, the unavailability of an “add beneficiary” remedy in the circumstances, and the absence of a timely application for accounting relief.
Court Upholds Will
At the outset, the court rejected the majority of the challengers claims.
First, the court observed that it had already ruled that the accounting-related relief application had been filed out of time and had struck the application and the associated affidavits. Second, the court rejected the challengers’ allegations of undue influence and suspicious circumstances, finding that they had not produced any supporting evidence for such claims.
The court therefore turned to the remaining issue of whether the testator had testamentary capacity when she made the 2010 will excluding the daughter. The court set out the sub-issues as follows:
- Had the executor proved that the requisite will formalities were satisfied?
- If so, had the challengers met their evidential burden to put capacity in question?
- If so, had the executor proved capacity on the balance of probabilities?
- Aside from capacity, had the testator overlooked her 2009 will? and
- Also, aside from capacity, does Alberta law permit “add beneficiary” relief in this case?
After reviewing the applicable legal principles for challenging a will on testamentary-capacity grounds, the court first found that the requisite formalities had been satisfied for the 2010 will.
Second, the court reviewed and rejected the challengers’ evidence regarding the testator’s capacity, concluding:
“The challengers stitched together bits and pieces, but they have not succeeded in discharging their evidentiary burden. [The daughter]’s evidence is either uncorroborated or, where corroborated, is vague and imprecise, raising no actual issue about [the testator]’s testamentary capacity in December 2010.”
Despite finding that the challengers had not rebutted the presumption of validity on the second sub-issue, the court proceeded to explore the third issue. Ultimately, the court found against the challengers on this point as well, stating that, on a balance of probabilities, it did not appear that the testator had experienced any material mental-health deterioration before or when executing the 2010 will and accordingly that there was no reason to doubt her testamentary capacity up to and at that time.
With regards to the testator’s change to her will in 2010 and her decision to exclude the daughter, the court stated:
“A testator does not have to have particular reasons for disinheriting a person who might otherwise be considered a “natural object” of a will i.e. someone deserving of or otherwise likely to receive a bequest. But the law is concerned where, on account of a delusion disorder or otherwise, a testator ends up with a false, and negative, perception of a likely beneficiary and the perception drives the testator to exclude or shortchange that person in the will.
In this case, I find no such delusion or even any misapprehension […] I find that, on all the evidence, [the testator] had a legitimate reason or reasons for being upset with [the daughter] in late November 2010 i.e. her upset with her was not the product of delusion, misunderstanding, or mistake (or at least unreasonable mistake).”
Fourth, the court rejected thechallengers’ argument that the testator had overlooked her 2009 will and mistakenly thought she needed to prepare a will in 2010 outright, stating that their claim “made no sense”.
Finally, the court discussed whether Alberta law permitted an adjustment of the 2010 will in the daughter’s favour. The court first reviewedthe concept of testamentary freedom, wherein a testator is deemed to have the freedom to dispose of her or his property as she or he wishes, assuming testamentary capacity. The court concluded:
“It is not this Court’s role to pronounce whether that exclusion was proportionate to the perceived shortfalls or otherwise whether this was the right decision. Nothing in Alberta law permits an adjustment of [the testator]’s will in [the daughter]’s favour in these circumstances.
[The testator] had testamentary capacity when she made the 2010 will. She knew what she was doing, and she had her reasons.”
As a result, the court rejected the challengers’ arguments and declared the testator’s 2010 will formally valid.
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