In Fehlberg Estate (Re), 2026 ABKB 82, (“Fehlberg”), the Court of King’s Bench of Alberta discharged a caveat and dismissed a Notice of Objection to the grant of Probate, which challenged the Deceased’s Last Will and Testament on grounds of undue influence or lack of testamentary capacity.

Facts

Dieter F. (the “Deceased”) passed away on December 27, 2022. He is survived by his two grandchildren, Melinda C. (“Applicant”), Evan F. (“Evan”), as well as his daughter, Leigh Anne F. (“Leigh Anne” or the “Respondent”). His former spouse, Mary Anne F. (“Mary”), died shortly after, on January 8, 2023.  Although Evan was named as a Respondent, his involvement in the litigation was minimal, with the Applicant’s allegations and focus directed solely at Leigh Anne.[1]

According to the Deceased’s Last Will and Testament dated February 12, 2021 (the “2021 Will”), the Applicant and Evan were named as equal beneficiaries of the Estate. The Deceased had previously executed two Wills, one in 2005 (the “2005 Will”) and another in 2019 (the “2019 Will”). The 2005 Will included the Applicant as a beneficiary. However, the 2019 Will did not, as the Applicant claimed it was a “mirror Will” with his former spouse, Mary. Despite this claim, the Applicant was unable to present a copy of the mirror Will to the court or provide independent corroboration.[2]

A year prior to the Deceased executing the 2021 Will, the relationship between the parties broke down, particularly between the Deceased and the Respondent.

The Applicant alleged that the Deceased was suffering from delusions and visited the Deceased’s doctor without the Deceased or his knowledge to discuss her concerns. Based on the misleading information provided to the Deceased’s doctor, it was suggested that the Deceased might’ve been suffering from a delusion disorder. The Applicant later initiated a Mental Health Act emergency protection order, which led to the police removing the Deceased from his home and taking him to the hospital. [3]

Medical assessments conducted on the Deceased in the hospital found no evidence of mental issues or disorders. The attending doctor noted the Applicant’s false accusations regarding the Deceased’s health.[4]

In or around 2020, the Applicant moved out of the Respondent’s home and into the Deceased’s house. In 2020, the Deceased and Mary separated, and by August 2020, the Applicant had moved out of the Deceased’s home. The 2021 Will was created after these events. [5]

In May of 2023, the Applicant applied for a grant of probate for the Estate. The Respondent filed a caveat and later a Notice of Objection, alleging that the Applicant unduly influenced the Deceased and that the Deceased lacked the requisite testamentary capacity to execute the 2021 Will.[6]

The Applicant sought to discharge the caveat and dismiss the Notice of Objection on the grounds that they were meritless and unsupported by evidence, making it suitable for summary disposition.[7]

Issues

The court was tasked with determining whether the Deceased possessed the necessary testamentary capacity to execute the 2021 Will or if he was unduly influenced by the Applicant to provide half of his Estate to her through the 2021 Will.

Analysis

Undue Influence

The Court quoting Vout v Hay, 1995 (SCC) and Hole Estate (Re), 2024 ABKB 308, asserted that when the validity of a Will is challenged on the grounds of undue influence or lack of capacity, there is a presumption of validity if formal requirements are met. Moreover, the party challenging the Will bears the evidentiary burden of providing corroborated evidence to rebut this presumption.[8]

The Court found no evidence that the Applicant was involved in the preparation or execution of the 2021 Will or that she influenced the Deceased. The evidence proved that the Deceased independently retained a lawyer to execute the 2021 Will, and the Applicant did not participate in the process or communicate with the lawyer. Moreover, the Applicant had moved out of the Deceased’s house and only communicated with him once or twice a month.[9]

The Court noted that allegations of undue influence must be corroborated by evidence independent of the Applicant’s own assertions, which the Applicant failed to do. On this basis, the Court concluded that the Applicant’s allegations were based on speculation and suspicion and did not meet the required evidentiary burden.[10]

Testamentary Capacity

The Court examined the medical and police records, determining that concerns about the Deceased’s mental health, raised by the Applicant, were not corroborated by independent sources. The documentation from physicians and police indicated that the Deceased was alert, oriented, and free from delusions.[11]

The Court found that the presumption of testamentary capacity applied because the Will met the formal validity requirements, and the Applicant failed to rebut this presumption with corroborated evidence.[12]

The Court determined that the Applicant’s objections didn’t raise a genuine issue requiring a trial, considering the evidentiary standard required and corroboration under Section 11 of the Alberta Evidence Act.  On this basis, the court concluded that there was no genuine issue warranting a trial. The court granted the Applicant’s application to discharge the caveat, dismiss the Notice of Objection, and issue the Grant of Probate.

Concluding Remarks:

Fehlberg underlines the importance of placing corroborated evidence before the court when challenging a Will on grounds of undue influence or lack of capacity.

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[1] Ibid at para 8

[2] Ibid at para 24

[3] Ibid at para 43

[4] Ibid at para 45

[5] Ibid at para 19

[6] Ibid at para 9

[7] Ibid at para 7

[8] Ibid at para 66

[9] Ibid at para 55

[10] Ibid at para 69

[11] Ibid at para 46

[12] Ibid at para 83