Handwriting analysis of the signature on a will

Have you ever wondered about how a real life court would deal with handwriting experts? I say "real life" to distinguish actual courts from our dramatic and exciting - but fictional - counterparts on TV. Handwriting is an issue from time to time when there is a question about whether the signature on a will is really that of the deceased, and when that happens, handwriting experts are usually called in.

Justin de Vries, who blogs at www.allaboutestates.ca, has provided an excellent overview of recent law in this area. Click here to read his article.

The bottom line is that forensic handwriting analysis is acceptable to judges, but doesn't necessarily make or break the case. The courts seem to want to be able to make their own judgments about the validity of the handwriting. Mr. de Vries' article is interesting reading, so check it out.

How do I know if someone is contesting the will?

I recently received this note from a reader who is acting as the executor of an estate:

"I have applied for probate and now I'm waiting the 6 months to see if anyone is going to contest the will. If they do contest it, how will I know?"

This is an excellent question, particularly if there is someone in the family who has been making noises about contesting the will. Usually the six months that you refer to is in place to allow a dependent of the deceased to apply for a greater share of the estate. Strictly speaking, this isn't contesting the will, but is only asking the court to change the distribution to give more of the estate to a person who was not sufficiently supported. In most places, a dependent (a spouse, minor child or handicapped adult child) has six months from the day the probate is issued by the court, NOT six months from the date of death.

If someone is going to make this kind of claim, they have to follow the court procedure set out in the law of the province or territory. Every province has its own laws and forms. The person who is making the claim would have to file certain documentation with the court and then serve the documents on you. They don't start a new lawsuit; they file all the documents in the probate court  using the case number assigned to your probate application.

Serving the documents - or giving you a copy of them - is usually done by registered mail or in person. When you filed your probate documents, you would have been asked to give an address for service. If you applied without a lawyer, the address for service would be your home address. If you used a lawyer, the address might be the lawyer's office. And by the way, refusing to pick up your registered mail doesn't mean they haven't served you. They have.

If someone tells you on the phone or writes you a letter saying they are making a claim against the estate, that is not sufficient. They have to go through the proper court process just like you did when you applied for the probate. Just talking about it does nothing. If someone does tell you they want to make a claim against the estate, tell them to see a lawyer.

Can my deceased brother's common law wife claim more than the will gives her?

Here is another interesting note from a reader with a question that many of you will confront as executors or as beneficiaries. This one has to do with a common law spouse claiming a larger share of an estate. Here's the question:

"My brother passed away 2yrs ago. He left everything to two people, me and his common law. His money is split 50/50 between us both. I am received a letter that she is claiming dependant. She feels that because she has a disability that she should receive more. Can this happen and what is there for me to do?"

Yes it can happen, but only within certain guidelines.

In all provinces and territories in Canada, there are laws that allow certain people to claim a larger share of an estate if they believe the will (or intestacy provision) doesn't adequately provide for their needs. In all areas, these certain people include spouses, minor children and adult children who are handicapped. These are generally referred to as "dependent relief" laws.

I see that the spouse mentioned here is a common law spouse. Not all parts of Canada include common law spouses in the definition of "spouse" for inheritance purposes. So this spouse could legally be entitled to all kinds of things including child support, tax relief, pensions etc but still not be allowed to claim a larger portion of the estate. So that is the first thing you have to check on - whether your province allows common law spouses to have succession rights.

In the "interesting links" section of my blog, look for the link called "common law partner succession rights" and click on it. It goes to a table that basically says yes or no to the question of whether common laws are allowed to make this kind of claim.

The second thing that leaped out at me is the fact that your brother died two years ago. In every province and territory where claims of this type are allowed, there is a deadline by which the claimant has to file the lawsuit. It's usually 6 months. Note that this means 6 months from the time probate was granted, not 6 months from the date of death. It would be pretty odd for this will not to be sent to probate for two years after your brother's death. So that is the second thing to look into.

Assuming that your brother's common law spouse does fit the legal criteria of a dependent, and has made a claim within the allowed time, I would think that she would have a decent shot at success. I say this because you  mentioned she is handicapped, though it's never a guaranteed outcome. It's up to her to prove that the 50% she is supposed to receive is not enough. The court will also look at whether she received anything outside of the will, such as joint property, a life insurance policy or a pension.

You, as the other beneficiary of the will, would have notice of the court application and have a chance to read and examine her documentation before the court date. If you want to oppose her application, you can do so.

This isn't something you'd likely want to do without consulting a lawyer. Start by finding out the facts so you know where you stand.

Make sure Mom knows when you visit

The recent BC case of Moore v. Drummond had a surprising result that may cause some uncertainty for lawyers and executors. The case revolves around the death of 98-year-old Dorothy Drummond. She disinherited her only son, Bruce, for not visiting or calling her for 50 years. However, there was evidence that he had visited her, and phone records showed that he called her at least once or twice every month. There were other issues with Mrs. Drummond's capacity as well, and Bruce challenged the will based on lack of capacity. However, the will was upheld by the court.

Click here to read a very good article about this case by lawyer Charles Ticker in www.advocatedaily.com.

Near the conclusion of the article, Mr. Ticker says that "this case emphasizes what I always tell my clients: you never know what a trial judge is going to do and there is no such thing as a sure winner." I couldn't agree more. Normally we give our best predictions based on precedent - what other judges have said in similiar circumstances where the law is the same. This case throws in a bit of a wrinkle.

Disinherited son gets 1 cent, court won't change the will

As readers who live in BC may already know, the law in BC is a little different from the rest of Canada when it comes to contesting a will. The bottom line is that BC's law allows a child who is disinherited or treated unequally to challenge a parent's will on moral grounds.

Recently a court in BC upheld a will in which a mother left her estate to her three daughters and left her son only 1 cent. The son challenged the will but the court did not decide in his favour. What made this case so different? Why did the court not allow this claim when it allowed many others?

The key was a 6-page letter from the mother outlining her reasons for disinheriting the son. And she was thorough, going back to the son's teenage years and describing all of the things he had done that had caused her legal and financial trouble, right up to him trying to declare her incompetent. The court decided not to interfere with the mother's intention to disinherit her son when she had such clearly communicated reasons for doing so.

I find this case interesting because I believe in a person's right to disinherit a grown, independent child if he or she wants to. This case gives some solid guidance on how to achieve that in BC.

If you'd like to read more about this case, Holvenstot v. Holvenstot, click here to read a very good article from www.canadianlawyermag.com.

Anyone you'd like to spite in your will?

In all the years I've been drafting wills, I've never had anyone say directly that they want to spite anyone through their will. However, clients have decided to leave out people for various reasons, and those omissions were at times perceived as having been made out of spite. In a case like that, a few words of explanation can go a long way.

Whenever a client of mine wants to omit someone who might be seen as a logical beneficiary, such as one of his or children or a spouse, I always recommend that a line or two of explanation be included right in the will. The words regarding a child are usually along the lines that the parent had given one particular child a lot of financial help that the others didn't receive, and therefore the parent would leave that child less (or nothing) so that all the children ended up being treated equally.

With respect to a spouse, the explanation might say that the spouse is financially independent from the deceased, or that the deceased left assets outside the will such as a life insurance policy.

Including an explanatory clause like this can go a long way to soothing hurt feelings. People tend to be upset when they are treated differently than the other kids under a will. They tend to ask, "what did I do wrong that caused me to be left out?" If there was an explanation such as the one I suggested above, they will see that they weren't actually  left out at all.

In all jurisdictions in Canada, spouses have the right to contest a will if they are not adequately provided for by their deceased spouse's estate. Having a clause that explains that life insurance policies or pensions or RRSPs were left directly to the surviving spouse provide evidence that the spouse has been looked after financially. The clause can help end or even prevent a challenge to the will.

Why let your beneficiaries think you spited them on purpose, causing them to launch a challenge against your will, when you can keep everyone happy with a few words of explanation?

Cartoon from www.andertoons.com

"I'm contesting the will" - real threat or just bluster?

I hear a lot of talk from beneficiaries about contesting of wills. The idea is tossed out as a threat by individuals who are unhappily surprised by not getting what they had hoped for under a deceased's will. But is it a realistic threat? The impression I get is that many people believe that anyone who doesn't like a will can simply demand that the will be changed to suit them.

This is not how it works.

Contesting a will means applying to the appropriate court to have a will struck down as being invalid. You would have to prove your case with sufficient relevant evidence. No judge in the country is going to rubber-stamp your request just because that's what you want.

Though each case and each will is different, the general concepts behind contesting a will are the same everywhere. Each case falls within these general headings. They are:
- undue influence
- lack of mental capacity
- problems with the will document itself, such as improper witnessing, lack of signature, other formalities not observed.

You'll notice that I'm leaving aide the issues that lawyers usually refer to as "dependent relief". This refers to an application by a spouse or child to get a larger share of an estate under a valid will. The will itself would still stand, but the court is asked to give a larger portion of the estate to someone in the family.

In this post I'm talking about the ways in which someone hopes to bring the entire will crashing down.

Undue influence:
A person relying on the concept of undue influence aims to show that the will should be struck down because the deceased had been forced or persuaded to make a will that wasn't really what he or she wanted. The idea is that the person getting the estate under this will wouldn't receive it had the deceased been left alone to do what he or she really wanted to do, and therefore shouldn't be allowed to receive it now.

Lack of mental capacity:
Mental capacity is an essential component of a valid will. A person making a will must understand what he or she owns, must have an appreciation of his or her obligations and must understand the nature and effect of making a will. Therefore, a will can be attacked on the basis that the deceased didn't really know what he or she was doing due to illness, injury, medications or other causes of confusion.

One thing that should leap out at you when you read about undue influence or lack of mental capacity is just how hard it would be to prove that either of these factors actually existed when the will was made.

How do you prove that the son receiving the lion's share of his mother's estate manipulated her into leaving it all to him? He will say that he was the one who helped Mom the most during the latter part of her life and that she left the estate to him out of gratitude. Then the battle will begin in earnest.

You may be absolutely positive that he influenced her. You  may even think that "everyone knows" he manipulated her. But we're talking about a court of law, not a family dinner table. How do you prove it?

I'm not saying that these cases never succeed, because they do. They rely on a judge's interpretation of doctor's reports, witness testimony, family history, common sense and the law. They are tough cases that take a long time, a lot of money and infinitely thick skin to tolerate, but when the evidence exists, they succeed.

But I also believe there is an awful lot of blustering and threatening going on, carried out by those who have no real idea of just how hard it really is to successfully contest a will. Most people who talk about contesting a will change their minds once they realize what's involved.


Please don't post a question on this thread. This thread now has more than 200 comments, which is the limit for this system. Once we go over that limit, I can't see or respond to your question, so please post it on any other thread that has less than 200 comments. Thanks!

BC appeal court upholds dismissal of estranged son's Wills Variation claim

BC has a law called the Wills Variation Act which allows a person to contest a will if he or she believes the will distributes an estate unfairly. This article from http://www.disinherited.com/ talks about the Hall Estate (2011 BCCA 354). A son who had intentionally distanced himself from his mother contested the will when he found that his mother had not left him anything. Should he win? Read the article here to see what the court said about this case.

You fight, you lose: adding no contest clauses to wills

Nobody wants their loved ones and/or beneficiaries to fight over their estate (well, almost nobody. I did once have a client who was a very angry man and wanted to deliberately set up a situation in which his kids would have to fight it out. Cooler heads eventually prevailed).

In this post, Laura West briefly discusses the practice of putting a clause into a will that tells a beneficiary that if he or she contests the will, the beneficiary will not get anything. I agree with Ms. West's conclusion that these clauses "may" be effective. And they may not. It's an area of law that isn't as simple as people would like it to be.

I've blogged about these clauses before. Click here to read my earlier post.

What is undue influence?

It's well known that in order to make a valid will, a testator must have mental capacity. But that's not the only requirement; the testator must also make the will voluntarily. If the testator was forced by someone else to include certain gifts in his or her will that the testator didn't really want to include, this is called undue influence.

It means that the will is less a reflection of what the testator wants and more a reflection of what someone else wants.

This is one of the reasons that a beneficiary of a will and the spouse of a beneficiary of a will are not allowed to act as witnesses to a will (if they do, their gift is void though the will is valid). Disallowing them as witnesses reduces the opportunity for them to force the executor to sign a will that leaves the estate to them.

There are plenty of ways in which a person might influence a testator, particularly one who is sick, fearful or lonely. The person might use violence or threats, though the Canadian case law is very clear on the fact that undue influence can and does happen without threats or violence. It could involve making false promises, or simply pressuring without letting up. The courts have said that some amount of begging is ok though!

If undue influence has resulted in the testator making certain gifts in his will favour of the influencer, that amounts to grounds for challenging the will. A judge will not grant probate if he or she believes that the testator was coerced into making the will that way, even if the testator had mental capacity. This makes it clear that undue influence is a separate concept from general testamentary capacity.

Undue influence is certainly a common term when it comes to clients wanting to contest a will, but it's important to understand that the person saying that undue influence existed has to prove it. They can't simply demand that the executor or beneficiaries show there was lack of undue influence; the person attacking the will has the burden of proof. This is no easy task, particurly for wills that were made quite a long time before death. That undue influence exists must be proved on the balance of probabilities (the civil test) as opposed to beyond a reasonable doubt (the criminal test).

If you're considering challenging a will on the basis that someone coerced the testator into making the will this way, or changing his or her will, I recommend that you sit down with a lawyer who has done quite a bit of estate litigation. You should understand that this isn't an easy case to prove. Your legal fees aren't going to be covered by the estate.

Wills and undue influence

"Undue influence" refers to coercing or manipulating someone into changing their Will. It's always a change that favours the person doing the influencing. It usually happens not long before a person, weak or sick, passes away. In law, a Will that was made under undue influence can be contested in court, because it does not reflect the true wishes of the testator. Even though the testator signs the Will, it becomes clear that he or she only signed it because of the undue influence.

The person who coerces, manipulates or influences an elderly person to change the Will may be what is often called a "recent friend", someone new on the scene who seems to be interested only in the elderly person's money. Believe me, elderly people can be very vulnerable to this, particularly if they are lonely or frightened of being alone.

However, it's not just recent friends that pull this kind of thing. Coercion, manipulation and influence are sometimes also applied by an elderly person's children. At times I'm shocked at the utter coldness of people's children when there is money involved. Other perpetrators are caregivers of the elderly person, neighbours and other relatives such as nieces and nephews.

I'm attaching an article here that appears on the Wills and Estates Blog on Lexis-Nexis.com. It reviews the Texas case of The Estate of Eugene Clifford Everett. It sets out the facts of the case pretty clearly and concisely. My guess is that a number of my readers will recognize the scenario, based on some of the questions I receive.  Read it not just to understand what constitutes undue influence, but to see what the courts did about it. Yes, this case is from Texas, but we have legislation here to deal with undue influence as well.