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Vancouver BC Contested Wills Dispute Testamentary Capacity

BC WESA Curative Powers Fixing Defective Wills Lawyers

Vancouver BC Contested Wills Dispute Testamentary Capacity cases involve disagreements over whether the deceased knew what they were doing when they made their last Will. Vancouver BC Contested Wills Dispute Testamentary Capacity cases require the person making the Will to be “of sound mind, memory and understanding”. MacLean Estate Litigation Lawyers understand the emotions and dynamics in these complex cases. We have offices located in Vancouver, Surrey, Kelowna, Richmond, Fort St John, BC and in downtown Calgary. You can reach us toll free at 1-877-602-9900. Time limits apply so do not delay.

Vancouver BC Contested Wills Dispute Testamentary Capacity

Lorne MacLean, QC founder of MacLean Law Estate Litigation Vancouver BC Contested Wills Dispute Testamentary Capacity Lawyers

Our experienced Vancouver BC Contested Wills Dispute Testamentary Capacity lawyers know that sometimes Wills are changed at the last minute when the elderly Will maker is infirm, confused or irrational. If they don’t know what their assets are, or the people they want to give it to, problems can result. These people can be targets of unscrupulous third parties and “predatory marriage” is a phrase used when these often wealthy but elderly Will makers are near the end of their lives and their high net worth is an attractive target. Potential family members and other beneficiaries who were part of a bequest in a former Will or obvious family members who were left out of the Will often file court cases in Vancouver BC Contested Wills Dispute Testamentary Capacity disagreements.

Vancouver BC Contested Wills Dispute Testamentary Capacity Lawyers

In Bach Estate (Re), 2017 BCSC 548 a deceased’s Will was “fixed” and upheld as valid on the issue of  the deceased having the capacity to make his Will. The case provides a tidy summary of what the law on testamentary capacity is:

Testamentary Capacity

[25]         The respondent has put in issue the testamentary capacity of the deceased.

[26]         The meaning of testamentary capacity has not changed significantly since the often cited decision in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 567. The meaning was recently put this way by Sigurdson J. in De Araujo v. Neto, 2001 BCSC 935 at para. 127, citing from Feeney’s Canadian Law of Wills, 4th Ed. (Toronto: Butterworths, 2000) at 2.5:

To use the time-honoured phrase, a person must be “of sound mind, memory and understanding” to be able to make a valid will. When a will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the “nature and quality of the act”. The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded.

[27]         The test is not particularly onerous. In McLean and v. Gonzalez-Calvo, 2007 BCSC 646, MacKenzie J., as she then was, again citing Banks, stated at para. 53:

In Dalziel v. Bradford, Chief Justice McEachern said at 233:

The classic test for testamentary capacity is found in the judgment of Cockburn C.J. in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 567 as follows:

In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of this property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending in business in some measure new.

I agree with counsel for the defendants, apart from Mrs. Hemmings of course, that the courts, particularly with a first will, do not require a stringent standard for testamentary capacity. The Supreme Court of Canada considered the issue of a previously insane testator’s will in Laramée v. Ferron (1909), 41 S.C.R. 391. The testator there had periods of insanity and inability to prepare a will prior to preparing the will in question. The court said at 407:

Then we have two professional gentlemen who give evidence as to the making of the will and unless we discard what they say as utterly unworthy of belief without any proper reasons for doing so I do not see how we can, especially in light of what had gone before, say that deceased was so deprived of mind, memory and understanding that she could not make a will.

Burden In Vancouver BC Contested Wills Dispute Testamentary Capacity

The Court also provided a summary of the rules on who must prove testamentary capacity in a Vancouver BC Contested Wills Dispute Testamentary Capacity case:

[28]         The burden of proving testamentary capacity is on the propounder of the will, although they benefit from a presumption of capacity where the will has been duly executed, with the requisite formalities, after having been read by or to a testator who knew and approved of the contents of the will: Maliwat v. Gagné, 2009 BCSC 1447 at paras. 106-108.

[29]         In this regard, Harvey J. in Kournossoff Estate v. Chapman, 2000 BCSC 1195 noted five principles that are relevant to the burden of proof in cases of challenged testamentary capacity:

55      The proponents of a will have the burden of proving that the will has been duly executed, that the testator knew and understood the contents of the will and that the testator had testamentary capacity. The legal principles governing the standard and burden of proof were set out by the Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.). Those principles were summarized by Baynton J. in Dieno Estate v. Dieno Estate (1996), 13 E.T.R. (2d) 211 (Sask. Q.B.), and the summary was adopted by Harvey J. in Danchuk v. Calderwood (1996), 15 E.T.R. (2d) 193 (B.C. S.C.) at 214-215. Of the six points in the summary, five are applicable to the case at bar:

1. The propounder of the will has the legal onus or burden of proof (the civil standard on a balance of probabilities) with respect to its due execution, the knowledge and approval of its contents by the testator, and the testamentary capacity of the testator.

2. The propounder is aided by a rebuttable presumption that the testator knew and approved of the contents of the will and had the necessary testamentary capacity. The presumption arises upon proof that the will was duly executed with the requisite formalities after having been read over to or by the testator who appeared to understand it.

3. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event the evidentiary burden reverts to the propounder.

4. Evidence of “suspicious circumstances” does not impose a higher standard of proof on the propounder than the civil standard. The presumption that aids the propounder of the will is simply spent if “suspicious circumstances” are present. The propounder then reassumes the evidentiary burden of establishing knowledge and approval (and testamentary capacity if the suspicious circumstances reflect on the mental capacity of the testator to make a will)… .

5. Suspicious circumstances may be raised by: (a) circumstances surrounding the preparation of the will; (b) circumstances tending to call into question the capacity of the testator; or (c) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

[30]         Here, given my findings on the validity of the will below, I find that there is a presumption of capacity and that it has not been displaced. I also find that Mr. Bach, in fact, had the requisite capacity when signing the document.

Call our top rated Vancouver BC Contested Wills Dispute Testamentary Capacity lawyers early on in a case where you have been left out of the Will or have concerns about a loved one’s mental capacity. Toll free 1-877-602-9900.


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