Gavin Howe
In British Columbia, interested parties can challenge a will in court if they suspect it is invalid due to suspicious circumstances. Such circumstances include undue influence, coercion, fraud, or lack of testamentary capacity. Testamentary capacity refers to a person's legal and cognitive ability to write a valid will, which includes understanding the purpose of a will, deciding how to distribute assets, and being mentally capable of making free decisions. The burden of proof initially lies with the person raising the suspicious circumstances, but if they can establish that suspicious circumstances interfered with the making of the will, the burden shifts to the person asserting its validity.
| Characteristics | Values |
|---|---|
| Purpose | To ensure will-makers have acted freely and voluntarily and to prevent the enforcement of legally invalid wills |
| Burden of proof | Initially on the person raising the suspicious circumstances |
| Shifting of burden | If the challenger establishes that suspicious circumstances interfered with the making of the will on a balance of probabilities, the burden shifts to the person asserting the will is valid |
| Circumstances | Circumstances surrounding the preparation of the will, circumstances tending to call into question the capacity of the testator, mental or physical deterioration of the will-writer, undue influence, fraud, coercion, recent serious illness, significant beneficiary involvement, etc. |
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Testamentary capacity
The test for testamentary capacity was set out in the 1870 case of Banks v Goodfellow. For a testator to have testamentary capacity, they must:
- Understand the nature of making a will and its effects
- Understand the extent of the property of which they are disposing
- Be able to comprehend and appreciate the claims to which they ought to give effect
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will
The level of understanding required by the test varies according to the complexity of the will itself, the testator's assets, and the claims on the testator.
The Mental Capacity Act (MCA) came into force in 2005 and has featured in many cases alongside the test for testamentary capacity as set out in Banks v Goodfellow. Under the Act, a person lacks capacity if they are unable to make a decision for themselves due to an impairment or disturbance in the functioning of the mind or brain. A testator must be able to understand any information and be able to use this information to make and communicate their decision.
The High Court confirmed in Clitheroe v Bond (2021) that the test for testamentary capacity remains as set out in Banks v Goodfellow. In this case, Jean Clitheroe had made two wills, in 2010 and 2013, leaving her entire estate to her son, John, and omitting her daughter, Sue, as she believed her daughter was a 'shopaholic' and a 'spendthrift'. Sue challenged the wills, claiming that they were invalid as her mother did not have testamentary capacity. The court found that both wills were invalid.
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Undue influence
In the case of Malousek v. Meyer, Molly and Greg began living together in 2009. In 2015, Molly was diagnosed with cancer, and her health deteriorated significantly by 2017. During this time, Molly and Greg took several actions that benefited Greg, including adding him as a joint owner on her bank accounts, changing beneficiary designations in his favour, getting married, and executing a quitclaim deed to transfer their home to him upon her death. After Molly's death, her adult children, A.J. and Courtney, filed a lawsuit, arguing that their mother lacked the capacity to make these decisions and that she had previously indicated different wishes. The district court ruled in favour of the children, annulling the marriage and ordering the property to be conveyed to Molly's estate. Greg and Mark appealed, and the case reached the Nebraska Supreme Court. The Supreme Court upheld the lower court's decision, noting that Molly's health had deteriorated, the transactions were done in secret, and her contact with friends and family was controlled.
Another example is the case of Jones & Ors V Jones, where the court held that the testator's will was invalid due to undue influence. Daphne Jones, aged 82, passed away in hospital, and her will was signed just two months prior. The will was witnessed by a neighbour and a chartered accountant, who also typed up the document. The court found that Mrs Jones was coerced into making her will by one of her daughters, Ceri, despite a lack of direct evidence.
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Fraud
Criminal fraud involves a case where there is enough evidence to take the case to court. The defendant must be proven guilty beyond a reasonable doubt. The penalties for fraud depend upon the type of fraud, the number of victims, and the amount of financial loss. Punishment usually includes a prison sentence, an order of restitution to make the victim whole again, and fines. State and federal laws determine the criminal penalties for fraud. For example, state law may deem fraud a misdemeanour or felony based on the amount of money the fraudster obtains. Fraud charges can carry a lengthy prison sentence.
Civil fraud tends to be a private action. The claimant, which could be a person or a business, takes the matter to civil court to recover their losses due to fraud and potentially get compensation too. There, the standard of proof is less than in a criminal fraud case. In civil fraud cases, whether someone is guilty or not is based on probabilities. Basically, the evidence must prove that it’s more probable than not that the fraud occurred. Civil fraud does not carry the possibility of incarceration or fines, whereas criminal fraud can result in both.
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Coercion
In the context of will-making, undue influence or coercion may be considered suspicious circumstances. For example, in the Indian case of Daulat Ram And Others v. Sodha And Others, the respondents had to establish their case of undue influence or coercion, and then the burden shifted to the appellants to remove the suspicious circumstances.
Australian case law, such as Nock v Austin [1918] HCA 73, provides clear guidance on how courts assess suspicious circumstances and undue influence in wills. It is generally viewed as suspicious if there is pressure on the will-maker to make particular decisions about their estate.
In the context of criminal law, coercion can be used as a defence if an individual can show that they were forced to commit a crime due to threats or intimidation. For example, in federal criminal cases, a person may claim duress or coercion as a valid defence if they committed a crime because someone threatened or intimidated them into doing something they would not have otherwise done. To successfully use this defence, an individual must show that they had a reasonable fear of immediate serious bodily injury or death if they did not commit the crime.
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Lack of mental capacity
Establishing mental incapacity involves a careful evaluation of an individual's ability to understand, retain, process, and communicate information necessary to make decisions. This assessment is crucial when seeking legal authority to manage their affairs. A medical evaluation by qualified professionals is essential to assess an individual's mental health and cognitive abilities. Medical records, tests, and assessments will be used to determine an individual's capacity to make decisions.
In the case of lifetime gifts, once a confidential relationship and suspicious circumstances are established, the burden of proof to validate the transfer/gift shifts to the accused, who must prove by "clear and convincing" evidence that there was no undue influence. The law presumes that an elderly or impaired person, like any other person, is competent and fully understands their decisions. Whoever challenges competency has the burden of producing evidence to rebut that presumption. This means the accuser must have credible evidence of incapacity to contest a gift or legal transfer of ownership.
In Moore, N. Smith J. found that the testatrix's doctor describing her as no longer capable of managing her affairs and as suffering from dementia around the time she made her will constituted a suspicious circumstance sufficient to rebut the presumption. In Laszlo v Lawton 2013 BCSC 305, Justice Ballance summarised this area of the law, affirming that the legal burden of proving due execution of the will and testamentary capacity is with the party propounding the impugned will. The party seeking to uphold the will must prove that it was duly executed and is the product of a free and capable testator.
There are also situations in which a court will apply a legal presumption of undue influence, such that the burden of proof would switch to the alleged influencer. For instance, when the non-relative drafter of a decedent's estate plan is also a beneficiary under that estate plan. Complete lack of capacity does not have to be proven to successfully prove undue influence, but it usually needs to be shown that the decedent did not have the mental competence necessary to adequately protect themselves against undue influence.
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Frequently asked questions
Will suspicious circumstances are situations that threaten the presumption that a will is valid. They can include mental or physical deterioration of the will-maker, undue influence, or lack of capacity.
The doctrine of suspicious circumstances in BC aims to ensure that will-makers act freely and voluntarily when creating their will, and to prevent the enforcement of legally invalid wills.
If suspicious circumstances are proven, the burden of proof shifts to the defendant, who must then prove the validity of the will.
Examples of suspicious circumstances include sudden changes to a will, significant involvement from beneficiaries, and episodes of depression or anxiety.
Interested parties, such as family members or beneficiaries, can challenge a will if they believe it is invalid due to suspicious circumstances.
