Weak claim against the estate could cost you big time

"Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation". So said Ontario's Court of Appeal in the case of Smith Estate v. Rotstein earlier this year.

In that case, a woman challenged her mother's will on the basis that the deceased lacked testamentary capacity (i.e. didn't know what she was signing) and was unduly influenced into making the will. The woman's brother was the executor and was forced to defend the will. By the time the case made it through two levels of court, his legal bills were over $700,000.

The judge said that there was so little evidence supporting the woman's claim that she should never have brought the case in the first place. And if she had brought the case in good faith, she should have dropped it early on once she saw all of the evidence. However, the woman stubbornly carried on with the lawsuit, apparently thinking that the costs wouldn't matter because the estate would pay them.

She had a nasty surprise. The judge made her responsible for the brother's costs of $700,000, as well as $30,000 in disbursements. Ouch!

This should be a major heads-up to anyone who is thinking about bringing a weak lawsuit against an estate for emotional reasons. Yes, it's tempting to make the executor stop and pay attention to your issues. Yes, it's tempting to vent your emotions this way. And yes, you may even have heard that when estates end up in court, the estate pays all the lawyers. But this case makes it clear that pointless litigation just for spite won't be tolerated. The free ride for will contests is over. Unless there is strong evidence to back up your claim, don't count on the estate paying your lawyer.

"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!

Can I leave my estate to whoever I want to?

Don't you wish legal questions had simple answers? A straightforward "yes" or "no"? Well, this one doesn't have a simple answer.

Theoretically, a person making a will does have the freedom to leave his or her estate to any person or charity that seems appropriate. But there are restrictions.

The restrictions may have some variations from place to place, but one constant across Canada is that everyone must adequately provide for the following dependants in his or her will:
-  their spouse (legal or common-law)
-  their minor children (legitimate or not)
-  their adult children who are prevented from earning a living by a mental or physical handicap

When I say that a person must provide for these individuals in his or her will, I mean that should the person fail to do so, anyone on that list (spouse, minors, disabled adults) automatically has the right to contest the will to get a larger share of the estate or even the whole estate. These cases really do happen on a regular basis, and I've handled many of them myself.

You'll notice that adult children who are not disabled are not on the list. Contrary to what many people think, you are not required by law to leave your estate to your adult children. If you choose not to, you should be aware that you will be going against popular tradition and will probably disappoint your kids. This doesn't mean that you can't do it; it just means you have to take extra care to have a will properly drafted, your capacity documented, and your lawyer's file stuffed full of noted about why you made this decision.

Laws dealing with wills and estates are provincial (except for taxation) so there are some differences between the provinces. For example, I note that there are several recent cases from BC in which the estate distribution set out in the will was successfully contested. In my opinion, those same cases would not have succeeded in say, Alberta, because the law that allowed the change in BC doesn't exist in Alberta. Obviously these laws will allow or prevent you from leaving your estate to whoever you want to.

All of this discussion pre-supposes that when you make your will, you have mental capacity to do so and are acting freely with no coercion by anyone. If your mental capacity has deteriorated to the point where you are making unreasonable decisions, the law says that you can't make a new will, in effect binding you to the will you made before you lost capacity. For example, if you suddenly decided to make a new will leaving your life savings to a new friend you just met three weeks ago instead of your children, you should assume that someone isn't going to like that and is prepared to contest the will.

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.