Will Challenges
- Limitation Periods and Will Challenges
- Testamentary Capacity & Undue Influence
- Will Challenges and Will Interpretations - An Overview
- The Presumptions of Resulting Trust and Advancement
Limitation Periods and Will Challenges
There has been some controversy as to whether a Will challenge is subject to a limitation period under the new Limitations Act, 2002, which came into force January 1, 2004.
In her excellent paper presented at the 10th Annual Estates and Trusts Summit last week, Anne Werker states that in her view no limitation period applies to Will challenges. Not even the absolute 15 year limitation period set out in the Limitations Act, 2002 applies. In other words, a Will challenge is not statute-barred for being out of time. Keep in mind that the Limitations Act, 2002 was hailed at the time as bringing under one roof a myriad of limitation periods and imposing an almost universal 2 year limitation period (subject only to reasonable discoverability).
According to Anne, the Limitations Act, 2002 will not bar an application for a judicial declaration regarding the validity of the Will where, for example, there are grounds discovered subsequent to the issuing of a certificate of appointment of estate trustee, such as a later Will, or evidence that brings the Will into question.
However, Anne does acknowledge that the return of an issued certificate of appointment of estate trustee is not automatic when a Will challenge is launched after a certificate of appointment has been issued. A party may rely on equitable relief such as laches (failure to act) or acquisition (concurrence). As Anne points out in her paper:
"When a Certificate of Appointment of Estate Trustee has already been issued, on notice to the interested parties, and if the grounds to challenge the Will are weak, unexplained delay will be a significant factor in whether the Court exercises discretion to allow a Will challenge to proceed."
No doubt, the courts will eventually be asked to consider limitation periods and Will challenges, but in the interim Anne's paper has made a valuable contribution to the debate.
Testamentary Capacity & Undue Influence
A recent decision out of the Alberta Court of Appeal, Curtz v. Nicholson, is worth considering. An appeal was brought by the testator's daughters from a trial decision setting aside the testator's Will on the basis of the lack of testamentary capacity and undue influence.
The Will stated: "After careful consideration I have decided not to leave any portion of my estate to my son, Michael Nicholson, [who was the respondent in the Appeal], because I believe that if he receives any money he will use it for liquor." The testator's previous Will divided the residue of his estate equally between his children. The testator knew that his son had been convicted of drinking and driving offences in 1987 and in 1992. The Court noted that there was no evidence of animosity between son and father.
In 1998, the testator retained a lawyer to prepare a new Will. The lawyer asked the testator a series of question. Some of the testator's responses to those questions were inaccurate. However, the testator's lawyer ultimately concluded that there was no issue as to the testator's capacity. The lawyer prepared the new Will and the testator confirmed the Will and expressed his wishes before he signed it.
The Trial Judge ultimately held that the testator's lawyer did not test the testator's capacity on the day the Will was executed. The Trial Judge also found that the testator was under the influence of his daughters. The Trial Judge concluded that the testator was not legally competent and of independent mind when the Will was made.
The Court of Appeal allowed the appeal. The Will was declared valid and the son was only awarded damages of approximately $27,000.00 on a quantum merit basis. The Appeal Court held that the trial Judge had made a palpable and overriding error in finding the testator lacked testamentary capacity.
There was no evidence to support the finding of undue influence. The Trial Judge in fact failed to give any weight to the testator's lawyer's evidence that he discussed the possibility of the daughter's influence with the testator and the testator expressly denied that there was any such influence. Moreover, the testator's reason for excluding the respondent was expressly articulated in his Will and the lawyer was satisfied the Will expressed the testator's wishes.
There was no medical evidence suggesting the testator lacked capacity at any material time and there was no direct evidence that the daughters influenced the testator's testamentary decision. The Trial Judge made a palpable and overriding error in finding the testator lacked testamentary capacity. Indeed the evidence, particularly that of the testator's lawyer, established to the contrary the lawyer's specifically questioned the testator with a view to gauging his capacity during their first two meetings. Although the testator's lawyer did not do this when he met with the testator for the third time, the meeting lasted two and half hours and he had no reason to conclude the testator's capacity had changed. The lawyer noted that the testator was in good spirits and spoke clearly. The testator read the entire Will to the testator and was satisfied it expressed the testator's wishes.
The Court held that a finding of lack of testamentary capacity could not be sustained in the face of such evidence. Accordingly, the finding of undue influence could not be sustained in the record either. According to the Court, the Trial Judge focused her inquiry on a flurry of activity around the time the Will was made. However, there was uncontradicted evidence that the testator's wish to revise his Will to alter his son's share arose several months before the Will was signed. The Trial Judge failed to give any weight to this evidence.
The Trial Judge also failed to give any weight to the testator's lawyer's evidence that he discussed the possibility of the daughter's influence with the testator and the testator expressly denied there was any such influence. Finally, the testator's reasons for excluding his son were expressly articulated in the Will and the testator's lawyer was satisfied the Will expressed his client's wishes.
Accordingly, the evidence fell far short of supporting a finding that the Will did not express the testator's mind. An appeal to the Supreme Court of Canada was denied.