Setting Aside a Will: Incapacity or Undue Influence

There are numerous circumstances that merit a court order that a last Will and Testament not be admitted for probate. The two most common circumstances that are advanced are where allegations exist that the deceased did not have the requisite legal capacity to execute the Will and, secondly, where allegations are made that the deceased was unduly influenced to execute their Will.

If the capacity of the deceased is successfully brought into question, then the executor is required to establish that the deceased had testamentary capacity at the time that the Will was executed.[i] To meet this requirement, the executor must establish that, at the time of signing the Will, the deceased understood and appreciated:

1) the nature and extent of their assets;

2) who would reasonably expect to share in their estate;

3) the effects of the terms of the Will;

4) the relationship of the foregoing factors, to some degree, as a whole; and

5) a desire to dispose of the assets.[ii]

If an allegation is put forward that the deceased was unduly influenced to execute their Will, then the person making that allegation has the burden of proving undue influence.[iii] For inter vivos gifts, or gifts given during a person’s lifetime, undue influence may be established either by producing actual evidence of undue influence or by establishing that a presumption of undue influence applies.[iv]  The presumption of undue influence does not apply to testamentary undue influence, and therefore, evidence of actual undue influence must be adduced.[v]

To be actual undue influence, the influence must have resulted in the Will not reflecting the deceased’s mind.[vi] There should be evidence of manipulation, coercion or an abuse of power.[vii] Generally speaking, the Court will need to be satisfied that there is more than a “lack of independence”.[viii]

In a recent appearance before the Saskatchewan Court of Appeal, the author, Curtis J. Onishenko, sought to rely upon the doctrine of righteousness to set aside the Will on behalf of his client.  The doctrine of righteousness had not yet been considered in a reported Saskatchewan decision despite being traceable to the Supreme Court of Canada.[ix] In consideration of this historical doctrine, in obiter, the Court of Appeal theorized it as requiring a person to justify the “righteousness” of a transaction when that person was “instrumental” in the drafting of the Will and received a benefit from the Will greater than other beneficiaries, or, under any circumstances where the “suspicion” of the Court is raised.[x] While the Court declined to apply the doctrine of righteousness to the circumstances of that case, the Court of Appeal left open the door for future considerations of its continued existence and application to set aside Wills.

In the above circumstances, the issues are advanced with a Court application for an order that the Will be proven in solemn form. Even at this stage, in order to successfully advance a legal position, it may be necessary to provide sworn written evidence, solicit lawyer’s records respecting the execution of the Will, engage experts and commission reports, participate in a questioning, and engage meaningfully in disclosure requests. It may also be necessary to seek to compel the production of relevant legal documents, which may, but is certainly not limited to, medical records, bank statements, and/or personal journals or notations of the deceased.

If the challenger is successful in proving there is a “genuine issue to be tried” by adducing evidence that calls into question the capacity of the deceased or suggests the presence of undue influence, then, the evidentiary burden shifts to the Respondent to provide uncontradicted evidence to rebut the challenge to the Will.[xi] As such, both the challenger and the person charged with proving the Will should take care to put their best case forward through the evidentiary procedures of the Court and legal arguments even at the early application stage.

If the matter proceeds to trial, then both parties will seek to prove their position on a “balance of probabilities” in relation to the previously discussed onuses and presumptions.

About the Authors:

Curtis is a partner in the Saskatoon office, where he practices mainly in the areas of estate litigation, corporate/commercial litigation, construction litigation, and insurance litigation. He also advises clients on various labour and employment issues.

Paige is an associate in the Saskatoon office, where she practices primarily in estate litigation and provides related services in estate planning, estate administration and guardianship or co-decision-making applications, while maintaining a general civil litigation practice.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s largest, most established law firms, with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have helped our firm to rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2019/20). Integrity, experience, and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.

For more information and resources regarding COVID-19 visit www.mckercher.ca/covid-19

[i] Karpinski v Zookewich Estate, 2017 SKQB 278 (CanLII) at para 34.

[ii] Otta v Kapacila Estate, 2010 SKCA 85 (CanLII) at para 33, 359 Sask R 84; Bachman v Scheidt Estate, 2016 SKCA 150 (CanLII) at para 19, [2017] 2 WWR 301.

[iii] Karpinski v Zookewich Estate, 2018 SKCA 56 (CanLII) at para 28.

[iv] Thorsteinson Estate v Olson, 2016 SKCA 134 (CanLII) at para 35, [2017] 2 WWR 11.

[v] Karpinski v Zookewich Estate, supra note 3 at para 29; Olson v Skarsgard Estate, 2018 SKCA 64 (CanLII) at para 33-35, 426 DLR (4^th) 151; Seguin v Pearson, 2018 ONCA 355 (CanLII) at para 10-11, 141 OR (3d) 684.

[vi] Karpinski v Zookewich Estate, supra note 3 at para 30; Vout v Hay, [1995] 2 SCR 876 (CanLII) at para 21.

[vii] Karpinski v Zookewich Estate, ibid at para 31; Vout v Hay, ibid at para 28-29

[viii] Ritchie v Royal Trust Corp. of Canada, 2007 SKCA 64 (CanLII) at para 80, 293 Sask. R. 238, application for leave to appeal dismissed at 2007 CanLII 66770 (SCC).

[ix] Riach v Ferris¸1934 CanLII 13 (SCC)[ 1934] SCR 725 at 730-731; Karpinski v Zookewich Estate, supra note 3 at para 44.

[x]  Karpinski v Zookewich Estate, supra note 3 at para 44-47.

[xi] Ritchie v Royal Trust Corp. of Canada, supra note 8 at para 45–49;Carlson v Lazicki, 2012 SKQB 260 (CanLII) at para 33, 400 Sask R 2014; Wilson v Staples, 2018 SKQB 245 (CanLII) at para 71-75, 196 ACWS (3d) 876.