Employment and Labour and Wills and Estates lawyer Reshma Kishnani's article "Will challenges can be a costly experience" was published in The Lawyer's Daily. The article discusses the complexity of challenging a will using litigation.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc, on May 19, 2022, and updated on June 14, 2022. To read it in The Lawyer's Daily, visit: https://www.thelawyersdaily.ca/articles/36429 (subscription required).

Will challenges can be a costly experience

Will challenges, while necessary in many circumstances, can be costly for parties and take years to be adjudicated. In the absence of reasonable grounds or suspicious circumstances that are not rebuttable, parties would be well advised to reconsider their positions and to resolve matters without litigation. The recent Court of Appeal decision in a recent matter, reminds us of the challenges of attacking a will on the grounds of suspicious circumstances, undue influence and lack of testamentary capacity in the absence of reasonable grounds and the length of time and costs associated with litigation.

In this case, H.P. (the testatrix) had a history of prior wills and changed her will in 2002 in which she named the applicant, one of her nieces, C.L., as the sole beneficiary and estate trustee of her estate. In 2007, the testatrix had become upset with C.L. and changed her will to name Z.Z., another niece, as the sole beneficiary and executor of her estate.

The testatrix died in April 2011 and Z.Z. applied for probate of the 2007 will in May 2011. In December 2011, C.L. challenged the 2007 will and litigation ensued between the parties for just over 10 years.

C.L. alleged that the 2007 will should be declared invalid on the basis the testatrix had long-standing mental health issues which made her susceptible to being unduly influenced and lacking testamentary capacity to change her will in 2007. A five-day hearing was held before Justice Paul Sweeny in late 2019.  His decision was released on Feb. 21, 2020, and declared the testatrix’s 2007 will to be valid.  

Justice Sweeny in his decision considered all the evidence before him, including the testatrix’s history of prior wills, that of the expert witnesses presented by both sides, evidence of the testatrix’s family physician, estate lawyer and voluminous medical records. Justice Sweeny preferred the evidence of Dr. Pachet, Z.Z.’s expert over that of Dr. Schulman, C.L.’s expert, stating “Dr. Pachet was not influenced by the review of the facts … the paucity of the evidence of medical visits from 2005 to 2009 supports the view that [the testatrix] was functioning well and not under any delusions.”

Justice Sweeny, in upholding the 2007 will, concluded that the testatrix’s change in beneficiary was not a radical change and not a result of any delusion or disease of the mind. Costs in the amount of $75,175 were awarded against Leonard personally and not against the estate. The decision was appealed. Recently in March 2022, the Court of Appeal released its decision agreeing with Justice Sweeny. The Court of Appeal ordered costs in the amount of $15,000 against the appellant.

The Court of Appeal in its decision highlighted Justice Sweeny’s consideration of all the evidence before him, including expert evidence, and stated: “A judge’s finding of fact based on the acceptance of expert evidence and their preference of the evidence of one expert over another is entitled to deference and should not be disturbed in the absence of a palpable and overriding error in the assessment of the evidence.” The Court of Appeal further noted that Justice Sweeny considered significant evidence from the testator’s solicitor, family physician, attorney for property and personal care, and neighbour to support his conclusion that the testator had the testamentary capacity to change her will in 2007.

On the issue of costs, the court reiterated that Justice Sweeny did not err in his decision in “… requiring the appellant to pay costs, particularly having regard to his conclusion that there were no reasonable grounds upon which to question the execution of the Will or the capacity of the Testatrix.”

Eleven years later, Z.Z should finally receive her inheritance from the estate and C.L. subject to costs awards of over $90,000 related to the litigation.

The Court of Appeal’s decision is a reminder to parties unhappy with a testator’s decision to change their will that it can be costly to challenge the validity of a will in the absence of reasonable grounds and suspicious circumstances surrounding the execution of the will and evidence regarding the testator’s incapacity. Having a history of mental illness does not necessarily result in individuals being denied testamentary freedom to make or change their will.

The decision highlights the importance for estate practitioners that keeping detailed notes in their files of observations, reasons and discussions with their clients regarding their testamentary wishes, any changes to the same, as well as obtaining capacity assessments when necessary, can go a far way to protect their client’s wishes and legacy while upholding the principle of testamentary freedom in the face of a will challenge after they have passed.

The decision also reminds estate litigators to ensure their instructing communication to an expert witness is neutral and reiterates the facts related to the case. It would serve their clients best to allow their expert witness to provide evidence that is not “tainted” by a summary of facts “with advocacy in mind” as noted by the Court of Appeal in this case.