Introduction

The law of estates and trusts in Canada remains similar to several other common law jurisdictions such as the UK, Australia, New Zealand and the United States. The law also bears strong resemblance to those of common law jurisdictions such as Bermuda, a British Overseas Territory.

A recent decision out of the Supreme Court of Bermuda by Justice Larry Mussenden, Lauretta Stoneham v. Bertram Fraser^[1], concerned a will challenge based on a lack of testamentary capacity and undue influence.

Background

Cedelle Albina Prudence Fraser (the “Deceased”) passed away on December 21, 2019, at the age of 87. She was survived by her five children: Gary, Kenneth, Beverly, the Plaintiff Lauretta (the “Plaintiff”) and the Defendant Bertram (the “Defendant”).^[2]

During the Deceased’s lifetime she purportedly executed a total of six known wills, the last two formed the basis of the action and were executed in May and November 2018 (the “2018 Wills”). In May 2019, the Deceased was formally diagnosed with dementia. However, the evidence before the court supported a finding that she exhibited severe symptoms of dementia in 2018.^[3]

On her passing, the Deceased held two real properties that formed part of her Estate: Wisdom Manor, where she lived, and Aurora House.^[4]

In each of the Deceased’s prior wills, Aurora House was gifted equally to her five children and Wisdom Manor was gifted to the Defendant. Under the 2018 Wills however, both Wisdom Manor and Aurora House were gifted to the Defendant alone, disinheriting Gary, Kenneth, Beverly, and the Plaintiff. The Plaintiff sought to set aside the 2018 Wills on the basis that:

• The Deceased lacked the requisite testamentary capacity at the time; and
• The Defendant unduly influenced the Deceased to execute the 2018 Wills.

Issues

Issue 1: did the Deceased possess the requisite testamentary capacity to execute the 2018 Wills?

The law in Bermuda

The law in Bermuda regarding testamentary capacity is largely like that of Canada, sharing its roots with the common law jurisprudence from the UK. Both jurisdictions still use the seminal 19^th century English case of Banks v. Goodfellow^[5] which provides the legal criteria for testamentary capacity.

Applying Banks v. Goodfellow, the Bermuda court posed four key questions to determine whether the Deceased had testamentary capacity, namely:

1. Did the testator understand the effect of her wishes being carried out on her death?
2. Did the testator understand the extent of the property she was disposing?
3. Did the testator understand the nature of the claims upon her estate? And
4. Did the testator have a rational basis for making provision for only of her children (the Defendant) while excluding her other four children?^[6]

On the evidence, the court found that the Defendant had failed to satisfy parts c) and d). First, because His Honour found there was no rational basis for the Deceased to only provide for one of her children. Second, because His Honour found that the Deceased did not understand the nature of the claims upon her estate, as she suffered from an ‘insane delusion’^[7] (in this instance, dementia).

The question of testamentary capacity is almost wholly one of fact. A testator is presumed capable of executing their will if the requisite formalities are met^[8]. If the will challenger raises evidence calling into question the testator’s capacity, the onus is on the propounder of the will to prove testamentary capacity.

Determining testamentary capacity

In assessing the Deceased’s testamentary capacity, the Bermuda court primarily considered the available medical evidence and expert evidence of two doctors, who provided a joint expert report (“JER”). The experts were:

• Kenneth Shulman, a Canadian Professor of Psychiatry and medical expert in Ontario; and
• Stephen Attard, a British forensic Psychiatrist with the UK’s National Health Service.^[9]

Prior to executing the 2018 Wills, the Deceased underwent five separate capacity assessments. These assessments included a Montreal Cognitive Assessment (“MoCA”), an assessment by the Bermuda Alzheimer’s & Memory Services and assessments conducted by the Deceased family doctors. The JER analysed each capacity assessment and Dr. Shulman and Dr. Attard made retrospective findings as to the Deceased’s testamentary capacity. Dr. Shulman opined that the Deceased likely lacked the requisite testamentary capacity to execute the 2018 Wills, whereas Dr. Attard opined that she likely did.

In Dr. Shulman’s view, with the court concurring, a fundamental principle of any cognitive assessment is that it should be decision, situation, and time specific.^[10] In this regard, while each capacity assessment found the Deceased was ‘capable’, none specifically assessed the Deceased’s testamentary capacity. For instance, the cognitive assessment conducted by one doctor was found to be too broad and the report used language such as “decision-making in a medical or socio-legal context” which lacks the specificity required to probe testamentary capacity.^[11] As such, the court gave little weight to the capacity assessments.

In the Deceased’s MoCA she scored 13/30, which generally highlights moderate to significant cognitive impairment.^[12] However the doctor administering the test was found to have done so incorrectly. The doctor concluded that a MoCA score of 13/30 merely denoted mild cognitive impairment, notwithstanding that the Deceased was demonstrating severe symptoms of dementia at the time.^[13]

The court considered witness evidence from the drafting solicitor of the November 2018 Will. The drafting solicitor attested that she relied on a capacity assessment from May 2018 to conclude that the Deceased had testamentary capacity. The court found that since drafting solicitor relied on an erroneous assessment that did not probe testamentary capacity, the solicitor’s efforts to ascertain the Deceased’s capacity were of little weight.^[14]

Moreover, the court found little rationale as to why the Deceased would disinherit four of her children in favour of the Defendant. The evidence before the court, including examination of the prior Wills and witness evidence, established that the Deceased loved her children equally and there was no indication of major disagreements or quarrels. If the Deceased had not have suffered from an ‘insane delusion’, she most likely would have disposed of her property differently.^[15]

For these reasons, the court found that the Defendant had failed to raise sufficient evidence to demonstrate the Deceased had testamentary capacity to execute the 2018 Wills.^[16]

Issue 2: was the Deceased unduly influenced by the Defendant to execute the 2018 Wills?

The law in Bermuda

The doctrine of undue influence provides that a testamentary document will be set aside where it is found that, through exertion and influence of the mind of the testator, their mind falls short of being wholly independent. It requires coercion, mere influence is insufficient.^[17] The court will look to the relationships between the parties for any dependencies, and where multiple wills were executed, the pattern of changes between them.

The Bermuda court cited the modern application of the equitable principle of undue influence in the UK case of Royal Bank of Scotland plc v. Etridge (No. 2)^[18]. Undue influence operates in the UK and Bermuda in much the same way as it does in Canada.^[19]

Proving undue influence is primarily a question of fact. Facts must be adduced, directly or indirectly, that support the assertion that the testator was unduly influenced. As in Canada, the burden of proving undue influence is on the party asserting it, in this instance the Plaintiff.

Determining undue influence

When assessing undue influence, the court will consider the mental and physical strength of a testator in determining how much pressure is necessary to overbear their will. The court cited a text authored by Dr. Shulman and others that states: “the lower the capacity […] of an individual, the less influence would be required to determine that the individual was unduly influenced”.^[20] Judge Mussenden found that as the Deceased was suffering from dementia in 2018, this would significantly lower her cognitive status and “only a low level of influence was necessary to unduly influence [her]”.^[21]

The court considered evidence of the Defendant’s conduct which demonstrated that he attempted to isolate and influence the Deceased. This conduct included, among other things:

• The Defendant installed cameras around Wisdom Manor which only he had access to;
• The Defendant took the Deceased to four lawyer appointments in May 2018, and he arranged those meetings;
• The Defendant blocked the numbers of the Plaintiff and Beverly from the Deceased’s home telephone;
• The Defendant was the only individual who had access to the Deceased’s finances and bank accounts, having managed them since 2017; and
• The Defendant called the police when the Plaintiff tried to visit her mother and otherwise tried to deny her access.^[22]

These factors are specifically highlighted in the Canadian decision of Tate v. Gueguegirre,^[23] as “significant evidence suggesting [a] Will was the product of undue influence”. These include increasing isolation of the testator, the testator’s dependency on a beneficiary, a testator’s failure to provide an explanation for leaving their estate to one beneficiary and when a beneficiary is involved in arranging lawyer meetings.

The court concluded that the evidence, on the balance of probabilities, demonstrated that the Defendant’s aim was to isolate the Deceased from the rest of her family and friends. In so doing the Defendant “deployed a high degree of undue influence over [the Deceased]”^[24] and her “will was overborn as a result of the coercion”. The Defendant “literally and figuratively delivered her to the attorneys to change her Will, usurpingly in his favour”^[25].

Disposition

The court found that:

1. The Deceased did not have the requisite testamentary capacity to execute the 2018 Wills; and
2. The Defendant exercised undue influence over the Deceased when she executed the 2018 Wills to make dispositions in his favour.^[26]

As such, the court made an order setting aside the 2018 Wills and for the Defendant to provide an accounting of the Deceased’s property between the execution of the 2018 Wills and her passing. An Order was made that the Deceased’s 2017 Will be given a Grant of Probate.^[27]

Conclusion

The Supreme Court of Bermuda decision of Lauretta Stoneham v. Bertram Fraser is an insightful look into the similarities that exist in other common law jurisdictions concerning will challenges.  Moreover, Justice Mussenden’s judgment and Dr. Shulman’s expert report are helpful in reminding estate practitioners that capacity is always decision-specific, task-specific, and time-specific.

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[1] Lauretta Stoneham v. Bertram Fraser, [2020] SC (Bda) 92 Civ. (29 November 2023) (“Stoneham v. Fraser”)

[2] Stoneham v. Fraser at para 3.

[3] Stoneham v. Fraser at para 68.

[4] Stoneham v. Fraser at para 4.

[5] (1870) L.R. 5 Q.B. 549

[6] Stoneham v. Fraser at para 77.

[7] As His Honour put it, citing the language in Banks v. Goodfellow.

[8] Including when the will document is signed by the testator in the presence of two witnesses.

[9] Stoneham v. Fraser at paras 49 and 50..

[10] Stoneham v. Fraser at para 56.

[11] Stoneham v. Fraser at para 57.

[12] Stoneham v. Fraser at para 58.

[13] Stoneham v. Fraser at para 58.

[14] Stoneham v. Fraser at para 96.

[15] Stoneham v. Fraser at para 111.

[16] Stoneham v. Fraser at para 112.

[17] Dmyterko Estate v Kulikovsky (1992) CarswellOnt 543.

[18] [2002] 2 A.C. 733 HL

[19] See the Canadian case of Vout v. Hay, [1995] 7 E.T.R. (2d) 209 209 (S.C.C.) 

[20] Stoneham v. Fraser at para 123.

[21] Stoneham v. Fraser at para 124.

[22] Stoneham v. Fraser at para 125.

[23] 2015 ONSC 844 (Div. Ct.) at para 9.

[24] Stoneham v. Fraser at para 131.

[25] Stoneham v. Fraser at para 131.

[26] Stoneham v. Fraser at para 163.

[27] Stoneham v. Fraser at para 163.