Procedure When Lack of Capacity and Undue Influence Alleged
1. Introduction
It is well-known that when a disappointed beneficiary attacks a will for lack of capacity or undue influence or both, and therefore seeks probate of the will in solemn form, the court must address the matter in a two-stage process. The first stage is to determine whether the applicant has shown a genuine issue for trial. If that is proved, the second stage is typically a trial in which the issues of capacity and undue influence are assessed. Although the process is well-known, on occasion a review of it has merit. The matter arose again in Bell v Bell Estate[1] in which the Court of Appeal affirmed the decision of the Chambers Judge that the applicant had failed to point to some evidence that would tend to prove his claims.
2. Facts
Laurette and Donald Bell Sr had seven children, including the applicant. Donald Sr died in 2015 and Laurette in 2021 when she was 88 years old. They operated a successful business. After Donald Sr’s death, the business was run by Wayne and his three brothers. The business ran into financial difficulties and its assets were sold in 2020. Some years before Laurette’s death a rift occurred between Wayne and his brothers over two matters. The first arose out of an allegation that Wayne misused business funds and assets for his and his immediate family’s personal use. In consequence the brothers assumed control of the business and dismissed Wayne and his spouse as employees. The second matter arose out of a conflict between Laurette and Wayne’s daughter Dawn when, in 2019, Laurette alleged that Dawn failed to repay a loan made to her by Laurette, an allegation that Dawn denied.
In 2019 Laurette made a will in which she benefited all her children. But four months later, in 2020 she made a new will, using the same lawyer in which she directed that Wayne and his children would not receive anything from her estate.
Wayne then brought an application to have the Will proved in solemn form in which he alleged that Laurette lacked testamentary capacity and was subjected to undue influence in the making of the Will.
On the issue of testamentary capacity, Wayne argued that Laurette was increasingly forgetful and on one occasion not long before she made the Will she became confused and disorientated and wandered about for several hours. On the issue of undue influence, Wayne argued that his brothers made disparaging remarks about him to Laurette and alleged that he misused business funds and assets.
Wayne’s siblings filed reply affidavits opposing the application, as well as an affidavit of the lawyer in which he described his interactions with Laurette before and at the time of execution of the will. The siblings’ affidavits were consistent in attesting to Laurette’s capacity and independence. They deposed that Laurette made all her own decisions, booked her own appointments, paid all her bills and made her wishes clearly known until she died. They acknowledged that they discussed their concerns about Wayne’s actions in the business but agreed that Laurette was sell aware of the matter. They also attested that Laurette’s disorientation on the one occasion was an isolated incident and she in fact found her way on her own. The lawyer deposed that he made sure that Laurette was competent and stated that she was adamant about her exclusion of Wayne and his children from her Will and that Laurette was concerned Wayne’s misuse of business funds and the debt she believed Dawn owed her. He also deposed that in his opinion Laurette was not subjected to undue influence, since she was very capable and made her decisions on her own initiative.
3. Analysis and Judgment
The Chambers Judge acknowledged that a will challenge application involves two levels of hearings as described above. Then he reviewed the legal tests for determining testamentary capacity and undue influence. In the course of doing so, he referred to a number of Saskatchewan Court of Appeal and Queen’s Bench decisions, as well as Vout v Hay.[2] He concluded that Wayne’s arguments regarding Laurette’s age, her possible confusion about the loan to Dawn, and her momentary disorientation, did not give rise to a genuine issue to require a trial on the issue of testamentary capacity. Moreover, he concluded that the discussions between Wayne’s brothers and Laurette about Wayne’s alleged misuse of business resources did not amount to evidence tending to prove undue influence. He noted further that he made this decision on the basis of uncontroverted evidence without having to weigh conflicting evidence or make findings of credibility.
On the appeal the Court of Appeal held that the Chambers judge did not err by improperly weighing controverted evidence and did not make credibility findings. Indeed, he was mindful of his obligation to consider the evidence both for and against the applicant for the limited purpose of determining whether there was a genuine issue for trial without weighing conflicting evidence and making credibility findings. Further, he was careful not to determine contested matters but focused entirely on whether there was a genuine issue for trial. In fact, he assessed Wayne’s allegations in the most favourable light before reaching his conclusion.
Similarly, the Court of Appeal concluded that the Chambers judge did not err by misapprehending the evidence or disregarding material evidence. He recognized that there were evidentiary disputes, but those disputes did not make the evidence underpinning the genuine-issue question into controverted evidence.
—
[1] 2023 SKCA 53.
[2] [1995] 2 SCR 876
Menu
Written by: Albert Oosterhoff
Posted on: December 6, 2023
Categories: Commentary
1. Introduction
It is well-known that when a disappointed beneficiary attacks a will for lack of capacity or undue influence or both, and therefore seeks probate of the will in solemn form, the court must address the matter in a two-stage process. The first stage is to determine whether the applicant has shown a genuine issue for trial. If that is proved, the second stage is typically a trial in which the issues of capacity and undue influence are assessed. Although the process is well-known, on occasion a review of it has merit. The matter arose again in Bell v Bell Estate[1] in which the Court of Appeal affirmed the decision of the Chambers Judge that the applicant had failed to point to some evidence that would tend to prove his claims.
2. Facts
Laurette and Donald Bell Sr had seven children, including the applicant. Donald Sr died in 2015 and Laurette in 2021 when she was 88 years old. They operated a successful business. After Donald Sr’s death, the business was run by Wayne and his three brothers. The business ran into financial difficulties and its assets were sold in 2020. Some years before Laurette’s death a rift occurred between Wayne and his brothers over two matters. The first arose out of an allegation that Wayne misused business funds and assets for his and his immediate family’s personal use. In consequence the brothers assumed control of the business and dismissed Wayne and his spouse as employees. The second matter arose out of a conflict between Laurette and Wayne’s daughter Dawn when, in 2019, Laurette alleged that Dawn failed to repay a loan made to her by Laurette, an allegation that Dawn denied.
In 2019 Laurette made a will in which she benefited all her children. But four months later, in 2020 she made a new will, using the same lawyer in which she directed that Wayne and his children would not receive anything from her estate.
Wayne then brought an application to have the Will proved in solemn form in which he alleged that Laurette lacked testamentary capacity and was subjected to undue influence in the making of the Will.
On the issue of testamentary capacity, Wayne argued that Laurette was increasingly forgetful and on one occasion not long before she made the Will she became confused and disorientated and wandered about for several hours. On the issue of undue influence, Wayne argued that his brothers made disparaging remarks about him to Laurette and alleged that he misused business funds and assets.
Wayne’s siblings filed reply affidavits opposing the application, as well as an affidavit of the lawyer in which he described his interactions with Laurette before and at the time of execution of the will. The siblings’ affidavits were consistent in attesting to Laurette’s capacity and independence. They deposed that Laurette made all her own decisions, booked her own appointments, paid all her bills and made her wishes clearly known until she died. They acknowledged that they discussed their concerns about Wayne’s actions in the business but agreed that Laurette was sell aware of the matter. They also attested that Laurette’s disorientation on the one occasion was an isolated incident and she in fact found her way on her own. The lawyer deposed that he made sure that Laurette was competent and stated that she was adamant about her exclusion of Wayne and his children from her Will and that Laurette was concerned Wayne’s misuse of business funds and the debt she believed Dawn owed her. He also deposed that in his opinion Laurette was not subjected to undue influence, since she was very capable and made her decisions on her own initiative.
3. Analysis and Judgment
The Chambers Judge acknowledged that a will challenge application involves two levels of hearings as described above. Then he reviewed the legal tests for determining testamentary capacity and undue influence. In the course of doing so, he referred to a number of Saskatchewan Court of Appeal and Queen’s Bench decisions, as well as Vout v Hay.[2] He concluded that Wayne’s arguments regarding Laurette’s age, her possible confusion about the loan to Dawn, and her momentary disorientation, did not give rise to a genuine issue to require a trial on the issue of testamentary capacity. Moreover, he concluded that the discussions between Wayne’s brothers and Laurette about Wayne’s alleged misuse of business resources did not amount to evidence tending to prove undue influence. He noted further that he made this decision on the basis of uncontroverted evidence without having to weigh conflicting evidence or make findings of credibility.
On the appeal the Court of Appeal held that the Chambers judge did not err by improperly weighing controverted evidence and did not make credibility findings. Indeed, he was mindful of his obligation to consider the evidence both for and against the applicant for the limited purpose of determining whether there was a genuine issue for trial without weighing conflicting evidence and making credibility findings. Further, he was careful not to determine contested matters but focused entirely on whether there was a genuine issue for trial. In fact, he assessed Wayne’s allegations in the most favourable light before reaching his conclusion.
Similarly, the Court of Appeal concluded that the Chambers judge did not err by misapprehending the evidence or disregarding material evidence. He recognized that there were evidentiary disputes, but those disputes did not make the evidence underpinning the genuine-issue question into controverted evidence.
—
[1] 2023 SKCA 53.
[2] [1995] 2 SCR 876
Author
View all posts