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Monday, November 15, 2021

Judge decides that mother "inexplicably" leaving daughter out of will wasn't so inexplicable after all

There's an interesting new case from Ontario that I'd like to discuss today. Mrs. Mabel Johnson passed away at age 99. She left a will made in 2015 in which she left her estate to two of her three children. She left out her daughter, Nancy. In her previous will, made in 2007, she had left her estate equally to all three of her children.

The new executor applied for probate after Mabel died. As you probably anticipated, Nancy brought an application to court saying that her mother leaving her out of the will was "inexplicable". She said her mother had not had mental capacity to make a new will in 2015. She asked the court to compel the new executor to disclose documents to her, including financial records, medical records, and notes made by the lawyer who drafted the 2015 will. None of this is unusual so far. 

When a person contests a will, they must first prove to a judge that there are suspicious circumstances around the will. If they cannot show these circumstances exist, the court will not set a trial to contest the will. This is to prevent the floodgates of every disappointed person contesting a will for no good reason, and every estate facing unnecessary delays and expenses. In the Johnson case, the judge looked at the affidavits filed by the various parties to see whether the court needed to look further. 

Nancy's affidavit was not the only evidence the court had. It also had evidence from the new executor and the lawyer who prepared the will (who knew Mabel for 40 years). The evidence disclosed that Nancy had been her mother's Power of Attorney for a number of years because Mabel had a physical disability. During that time, Nancy added her name to her mother's investment accounts, making herself a joint owner. Nancy asked the bank to move the accounts to Calgary, 

When Mabel found out about all of this in 2014, she was furious. She hired her lawyer to demand an accounting from Nancy, which she did not receive. She then had her lawyer prepare a new will leaving Nancy out, and removing her as Power of Attorney. They  had to work with the bank to get Nancy's name removed. The relationship was severely damaged and at one point, staff at the care centre where Mabel lived overheard a very abusive telephone call from Nancy.

In light of all of this, the judge said she did not believe for a minute that leaving Nancy out of the will was "inexplicable". In fact, it was pretty logical and reasonable. And the idea that Mabel did not have capacity also seemed highly questionable, given that she understood and directed all of the actions to recover her money and ensure that it would not be taken again. There is no law that says a person must include all of her children in her will (although BC has different rules than the rest of us).

As I mentioned above, the court has to agree that there is something suspicious about the will and that it needs to be looked at more closely. The judge in this case said that there was not enough here to convince her that there was anything suspicious in Mabel leaving Nancy out of the will. She denied Nancy's request for the documents and notes, saying that estate should not be put to the expense and delay for no good reason.

This case was decided as I would have expected. Given the history of what happened between Nancy and her mother, it seems far-fetched to call it "inexplicable". 

Whenever a person is left out of a will in which they expected to inherit, their first reaction is to say that the will-maker didn't have capacity. I hear this constantly, even from people who have no medical evidence of any kind to back up their claim. The court is right, in my opinion, to try to separate the cases with real merit from the ones who are merely the result of disappointment. This case shows us that you're not going to get very far by simply saying there was something suspicious about the will when you have no evidence of that.

The court did not make an order regarding costs. However, the usual rule of costs is that the loser pays the winner, and in this case, Nancy was the loser. 

Anyone who would like to read the whole case, click here: IN THE ESTATE OF Mabel Johnson, Deceased


3 comments:

  1. Similar situation when my father passed away, where he left my sister out of the will. At the time he created the will, my sister was married to a man that was bankrupting them and my father believed he would get his hands on the inheritance as well, given my sister wasn't good with money. Luckily she had left him by this time and also luckily my brother and I are reasonable people. We split the money 3 ways and all is well.

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    Replies
    1. I'm glad to hear a good news story about an estate!
      Lynne

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  2. It's interesting that banks (or other) are robbed and sometimes the thief goes to jail. That thief's name might also appear in the newspaper. It seems rare that those that rob and steal via a 'will' ever go to jail or have their names published. Perhaps, that might deter some.

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