Originally published in our November 2016 Newsletter

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Morris v. Rivard, [2016] OJ No. 4973 (SCJ)

In Will challenge cases evidence is often provided by family members who may have their own agendas and a vested interest in the outcome of the proceedings. Drafting solicitors may be able to provide independent and neutral evidence with respect to the circumstances surrounding the drafting and execution of a Will. In a recent decision^[1] by the Ontario Superior Court of Justice it was the evidence of the drafting solicitors that was deemed “critical” in determining whether the Will should stand.

The Facts

The deceased was the father of three children: one son and two daughters. The son worked the family farm with his father for several decades until the father was hospitalized. On August 1, 2013, the 81 year-old executed a Will. Very shortly thereafter he called his two lawyers to his hospital bed and asked them to revise his Will to ensure that the family farm remained available for his son to work after his death and provided bequests to his daughters that he considered fair. He executed this revised Will on August 23, only three weeks after he executed his previous Will.

The daughters brought an application arguing that the second Will should be rejected as the result of testamentary capacity concerns and undue influence by their brother. The sisters recounted stories of arguments and fights between the father and brother while farming and an overheard conversation at the hospital where the brother stated “You better…” on the issue of whether the father remembered promising the son the farm property. They also argued that their brother did not spend as much time at the hospital as he should have.

Analysis of Evidence

Justice Carey noted that each of the siblings came with a vested interest in the result and that there was a clear animosity between the parties, noting that “[f]amily dynamics are complicated and it makes findings of credibility difficult.”^[2] Most of the evidence from the parties themselves was of “secondary importance”.^[3]

Instead, Justice Carey found that the “critical evidence in this case was provided by the lawyers” [emphasis added].^[4] In particular it was noted that both lawyers:

• were experienced solicitors who knew the deceased very well and had advised him for decades;
• were well aware of the likelihood of a dispute arising over the 81 year old’s decision to change the Will he made 3 weeks earlier;
• were alive to the factual and legal concerns over capacity and undue influence; and
• were both clear that there was no evidence of neurologic or mental disorder, confusion or any specific emotional circumstances.^[5]

While one lawyer thought that changing the Will was “not a good idea”, both lawyers confirmed that the son had no involvement in arranging for the lawyers to attend the father’s hospital room. In fact, the son had no idea his father changed his Will until after his father’s death (despite his lawyers advising him to tell his children).^[6]

Law & Findings

While the application appears to have been rooted in both testamentary capacity and undue influence concerns, Justice Carey focused his analysis on the undue influence allegations, ultimately concluding that the applicants did not discharge their onus of proving undue influence and that the father was capable of making his will on August 23, 2013.

The court was assisted by an expert in the area of undue influence (Dr. Ken Shulman) who reviewed the statements of the lawyers and the medical records of the deceased. The expert set out seven indicators of undue influence that Justice Carey considered in a review of the evidence. Those seven indicators were:

1. A confidential relationship existed between the testator and the influencer that created an opportunity for the latter to control the testamentary act;
2. The influencer used that relationship to secure a change in the distribution of the testator’s estate.
3. There were unnatural provisions in the Will.
4. The change of distribution did not reflect the true wishes of the testator.
5. The testator was vulnerable to being influenced, either because of neurologic or mental disorder or because of specific emotional circumstances.
6. The beneficiary actively participated or initiated the procurement.
7. There was undue benefit to the beneficiary.^[7]

Justice Carey could not conclude that there was a ‘confidential’ relationship between the father and son. There seemed to be a closer relationship between the father and the daughters with evidence that he confided in them. Furthermore, there was nothing “unnatural” in the provisions of the Will, it simply reflected the testator’s goal to keep the farm in the family.

Justice Carey also concluded that the father resisted the lawyer’s advice to forgo changing the Will because of his desire to “do the right thing” and not because of undue influence or fear.^[8] The urgency of the change was due to concern over an upcoming surgery. And finally, Justice Carey found that the Will did not convey an undue benefit to the son.

Conclusion

This case is a reminder to drafting solicitors to be watchful for red flags of undue influence and capacity concerns and to take comprehensive notes in the event that you may be called to give ‘critical’ evidence in a case such as this one. The importance of the evidence may not be readily obvious at the time of instructions or execution but the mere recording of it may well be of assistance at a later time

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[1] Morris v. Rivard, [2016] OJ No. 4973 (SCJ)(“Morris”)

[2] Morris at para. 5.

[3] Morris at para. 6.

[4] Morris at para. 6.

[5] Morris at para. 6.

[6] Morris at para. 23.

[7] Morris at para. 17.

[8] Morris at para.22.