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Insufficient Probing of Testator’s Dispositions When Drafting a Will: Moore c. Moore et al

Quebec Court Invalidates Will on the Basis of Insufficient Probing of Testator’s Dispositions when drafting a Will: Moore c. Moore et al


In Moore c. Moore et al, the court ruled the last Will and testament (the “Will”) of the late Richard Winston Moore (the “Deceased”) was deemed invalid.[1] The court made a finding of incapacity by the Deceased at the time of its execution on December 19, 2015. The decision revolves around a “shot gun will”, given it was executed under to pressure, time constraints and demands from a family member.[2]


After a successful hockey career in the NHL, the Deceased founded a company of rental construction equipment called Moore Equipment (the “Company”). The Deceased was married and had two children. The Deceased’s son, John (the “Defendant”) and his daughter, Lianne (the “Plaintiff”) both worked with their father at the Company. The Deceased had a close relationship with the Plaintiff and had provided financially for her his whole life. Meanwhile the Defendant, had a more “distant” dynamic with the Deceased. It wasn’t until the Defendant had returned to the Company’s head office in Montreal alongside his father in 2013 that they grew closer.[3]

As for the Deceased’s testamentary wishes, he had always vocalized treating his children equally. In 1977, the Deceased had a manuscript will, signed before witnesses, “stipulating an equal treatment” for both children.[4] On February 2014, the Deceased signed his Will on an “urgent basis”.[5] The Deceased was 83 years old at the time.

The critical factor behind the Defendant’s push to the have the Deceased execute his Will was attributed to the Plaintiff’s upcoming marriage with an individual who had not been accepted by the family.[6] The Defendant had vocalized a fear that this would allow the Plaintiff’s partner to inherit half of the company through this potential marriage. This fear factor was instilled in the Deceased leading up to the execution of the Will, as well as throughout its drafting.

The Will’s Stipulations

The Will created a share in the Deceased’s trust property that was not paid to the Plaintiff directly, “but by an intermediary of a trust (the “Lianne Trust”) providing her periodic payments which was the amount from which [the Plaintiff] benefited while her father was living”.[7] The Will stipulated a payment of $5,000 monthly which was not sufficient for Plaintiff’s lifestyle. Another provision provided that upon the Plaintiff’s death, the remainder of her share would be given to the Defendant’s children.

Meanwhile, the Will’s provisions pertaining to the Defendant were much more favorable. There were no restrictions placed on the Defendant, rather, it stated that the Defendant would become the sole manager of the company and all related entities.[8]

As per the management of the company, the Will provided that the Defendant would be given control upon the Deceased’s death. Meanwhile, there were no protections given for the Plaintiff’s salary and employment at the company.

Testamentary capacity

As per Article 703 and 707 Civil Code of Quebec:

Art 703. Every person having the required capacity may, by will, provide otherwise than as by law for the devolution upon his death of the whole or part of his property.[9]

The party who seeks to invalidate a will bears the onus on a balance of probabilities to prove that the testator was incapable at the time the will was signed. The court went on to state that:

The testator must enjoy his intellectual faculties to the point of being able of understanding the meaning and of measuring the scope of his testamentary dispositions.[10]

Importantly, and most applicable to the issue at hand, the court asserted “that the ability to carry out a normal conversation and think rationally tends not to be determinative of testamentary capacity”.[11]

The Deceased had exhibited signs of cognitive decline as noted from testimonies from his employees and children.

The Defendant’s expert, Dr. Frank stated that the Deceased had not exhibited signs of cognitive impairment.[12] After signing the Will, the Deceased had continued to work for the Company, including attending meetings and dealing with financial matters.[13]

However, the Plaintiff’s expert, Dr. Shulman importantly noted that the application of the assessment was incorrect since Dr. Frank relied on opinions that pointed to his general capacity, rather than specifically his capacity to execute a will.[14] Dr. Shulman opined:

The preservation of social graces can mask cognitive impairment and that a general assessment of global capacity bears very little value in this instance.[15]

Dr. Shulman stressed the importance of considering the Deceased’s prior wills that were drafted while the Deceased was “cognitively intact” would be of great importance. [16]

The Evidence and the Court’s analysis:

Circumstantial evidence regarding the intentions of the Deceased played a large part in the courts analysis and in invalidating the Will.

In 2011 and 2012, prior drafts of the Will demonstrated that the Deceased had always contemplated an equal division of the Deceased’s assets. It was not until a brief discussion a few days before the signing of the 2014 Will that a trust for the Plaintiff had been discussed for the first time. This was suggested despite the Deceased never having previously needed to “protect Lianne from her spending habits or from the men she was dating”. [17]

As for the initiative to do the Will, the court asserted that it did not believe the Defendant when he stated that it was the Deceased who had requested the appointment with the drafting lawyer. According to the drafting lawyer, the Deceased had demonstrated resistance against meeting to execute a new Will.[18]

The court found it of “concern” that the Plaintiff had not informed the Deceased prior to executing his Will that the Plaintiff had not followed through with her wedding plans, as she failed to provide a deposit for the wedding venue. This was a particularly important fact given the Deceased signed his Will on an urgent basis because of the Plaintiff’s wedding.[19]

The management of the business is another aspect of the Will that revealed a divide between the testator’s intention of treating his children equally, and the provisions of the Will.[20] In the Deceased’s previous draft wills he had always ensured the Plaintiff was provided with lifelong employment at the company. Additionally, it has always been the Deceased’s intention that the management of the company would be divided between both children. Except for one “episode” in 2011, the Deceased had never indicated that the only the Defendant would manage the company after his death.[21] When asked the question of who would run the business on the morning of the Will’s drafting, the Deceased’s first answer was both children. The court clarified that “perhaps this designation appeared to be reasonable to the lawyers” due to the Defendant’s heavy involvement in the operations of the company, however, it did not correspond to the Deceased’s previous wishes:

Such a drastic change was based on an induced unwarranted sense of urgency, and without taking the time to provide for protections for [the Plaintiff].[22]

The Drafting Lawyer’s failure to Probe

The court concluded through the evidence that the professionals had not probed the Deceased’s understanding of the Will’s provisions and their effects. Such probing was not done at the time the Will was drafted, signed, or read.[23] The professionals had claimed this was not done because they were not given a reason to doubt the Deceased’s capacity. The court reviewed each provision of the Will that was contrary to the Deceased’s lifelong intentions and proceeded to demonstrate how the professionals had failed to conduct adequate questioning or probing. Such provisions included why the Deceased was not dividing his assets equally, why the Plaintiff was receiving her funds through a trust that had never been previously mentioned or why the Defendant was earning full control of the company. The court provides:

The evidence does not show that measures were taken to verify the extent of Mr. Moore’s understanding of the effects of those provisions of the Will.[24]

The Court’s Conclusion

The court found that the Deceased did not have the requisite capacity to “have consented to change his testamentary provisions to an extent that it would create an inequitable sharing of his estate between his children”. The court reiterates Dr. Shulmans findings:

Circumstances like these require from the testator a higher level of intellectual faculties to enable him to thing independently, understand and appreciate the effects of his testamentary dispositions on his heirs and to resist influence from others.[25]

The court asserted that if the professionals and drafting lawyers had sufficiently probed the Deceased’s understanding of his disposition, the court likely would not have concluded that nullifying the Will was necessary.[26]  The court stated that the Deceased required further explanations to appreciate understand the impact of such provisions, which were made to the Plaintiff’s detriment. Evidence of such explanations or clarifications to the Deceased were not provided to the court.

This decision demonstrates the importance of probing client’s understanding of their dispositions when drafting a Will. It is vital that evidence of such probing is recorded.

[1] In the matter of the estate of the Late Richard W. Moore, 500-17-113166-204 Moore c. Moore et al.

[2] Ibid at para 193.

[3] Ibid at para 7.

[4] Ibid at para 5.

[5] Ibid at para 17.

[6] Ibid at para 36.

[7] Ibid at para 138.

[8] Ibid at para 20.

[9] Ibid at para 22.

[10] Ibid at para 27.

[11] Ibid at para 28.


[13] Ibid at para 93.

[14] Ibid at para 106.

[15] Ibid at para 85.

[16] Ibid at para 86.

[17] Ibid at para 139

[18] Ibid at para 179.

[19] Ibid at para 245.

[20] Ibid at para 216.

[21] Ibid at para 222.

[22] Ibid at para 134.

[23] Ibid at para 228.

[24] Ibid at para 231.

[25] Ibid at para 227.

[26] Ibid at para 263.


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