2017 SKQB 278 (CanLII), http://canlii.ca/t/h6hvd
In this Saskatchewan case, the testator died with a formally executed Will that was prepared with the assistance of a lawyer. The Will left his entire estate to his sister and her husband and named them as executors. The testator had also appointed the executors as his attorneys under a Power of Attorney.
After the testator’s death, the brother of the deceased brought an application challenging the validity of the Will. His arguments included that the deceased had been subjected to undue influence by the beneficiaries, and that he lacked testamentary capacity.
The deceased and his siblings grew up on their parents’ farm. The deceased operated the farm alongside his parents and long after their death. His estate included land that was transferred to him by his parents as well as property that he acquired after their death.
The applicant brother and the deceased were not close. The applicant described the deceased as a simple, “uneducated and unsophisticated” man who was looked after by his parents until their death.
The brother’s arguments raised issues of undue influence and testamentary capacity, based mainly on his opinion regarding the deceased’s capabilities and assertions made by the deceased years after the Will was executed.
The Chambers Judge was to determine whether there was a genuine issue for trial. If so, then the Judge could direct the matter to a hearing.
The nature of the allegations challenging testamentary capacity and alleging undue influence are to be considered in regard to a contextual timeframe. For testamentary capacity, the timeframe is at the time the Will was signed. With respect to undue influence, a broader timeframe may be taken into consideration.
In determining undue influence, a Court may take into account the level of the beneficiary’s involvement in arranging for, making, and keeping the Will. The Court may also consider events post-execution. However, the Chambers Judge noted that the investigation does not extend to influence that occurs many years after the execution of the Will.
In this case, the notes of the lawyer who prepared the Will were found to be germane to the issues of undue influence and testamentary capacity. The notes confirmed that the lawyer received instructions directly from the testator with respect to a Will and Power of Attorney. The lawyer’s account was paid by the testator. Further, the Power of Attorney which was prepared by the lawyer contained a certificate of independent legal advice and witness, part of which stated that in the lawyer’s opinion, the testator had the capacity to understand the nature and effect of an Enduring Power of Attorney at the time of execution. The Will was signed at the same time.
The evidence regarding testamentary capacity at the time the Will was executed came from the solicitor’s file. It showed that the testator met with the solicitor and provided instructions regarding a Will and Power of Attorney. There was nothing on file to suggest that the testator lacked capacity. In the circumstances, it was incumbent upon the applicant to show that there was a genuine issue for trial.
The applicant argued that the testator’s lack of education and sophistication; the repeated assertions of the testator that the estate would be divided amongst all nieces and nephews (all of which were made years after the Will was signed); the failure of the respondent to correct the testator when those assertions were made; and the testator’s inability to retrieve the Will from the respondent’s safety box for review; raised a genuine issue. No medical or expert evidence was filed with respect to the testator’s mental capacity.
The Court found that none of the issues raised created suspicious circumstances requiring a hearing of the matter.
The Chambers Judge relied on the definition of undue influence outlined in Thorsteinson as follows: “that which overbears the will of the person influenced so that in truth what he or she does is not his or her own act.” Assertions of undue influence must be substantiated with evidence.
The Court in Thorsteinson also set out the underlying basis upon which undue influence may be invoked. The first basis is “actual influence” involving a person expressly applying influence upon the donee. The second is a recognition that persons standing in certain relationships with another will be presumed to be in relationships of influence over the other until the contrary is proven: “presumed undue influence”.
The applicant argued that the respondents should be presumed to be in a relationship of influence over the testator.
In response, the respondent testified that her brother provided her with a copy of the Power of Attorney some-time after it was signed and she did not take any action on it until 2015. She also stated that she lived in Saskatoon at the time the Will was executed and had no involvement in any arrangements or discussions or consultations with the lawyer who prepared same. She did not discuss or influence her brother with respect to the contents of the Will.
The Chambers Judge concluded that there was no evidence to support that a relationship of influence existed and dismissed the application with costs payable to the respondents.
Undue influence and testamentary capacity must be considered within a contextual time frame. With respect to undue influence, the investigation includes the nature of the relationship and the level of the beneficiary’s involvement in the making of the Will. This may include events preceding and immediately post-execution. However, it does not extend to influence occurring years after the Will was signed.
The contextual timeframe with respect to testamentary capacity, however, is limited to when the Will was signed.
 Thorsteinson v Olson, 2014 SKQB 237, 452 Sask R 160 [Thorsteinson]