An issue in estate litigation that continues to make its way before the court is the issue of the incapacity of a testator (the person who is making the will), and whether they were unduly influenced. This question often comes before the court in an application to have a will proven in solemn form. This type of court application tests the validity of a will, and often involves proving that the testator had capacity, and was free from undue influence or coercion at the time of execution. The following is a breakdown of how this type of application works and some of the risks and considerations involved when making such an application.
Who can make an application to have a will proven in solemn form?
Anyone who is a named beneficiary under a will has standing to apply to have a will proven in solemn form. In addition, any beneficiary or executor under any other valid, or potentially valid, testamentary document may make this type of application. Finally, individuals who would be entitled to the estate under intestacy (if the deceased died without a will) pursuant to The Intestate Succession Act, 2019, I- 13.2 [“Intestate Succession Act”], may have standing to bring this application (Olson v Skarsgard Estate, 2018 SKCA 64 at para 20).
How does the application work?
On an application to challenge a will based on testamentary capacity, there is a two stage hearing process involved, as set out in Dieno Estate v Dieno Estate (1996), 1996 CanLII 6762 (SKKB), 147 Sask R 14 [Dieno]:
First, there will be a chambers hearing to determine whether there is sufficient merit to the allegations to warrant a trial. If, and only if, the chambers judge determines that there is merit to the allegations of testamentary incapacity will the second hearing be engaged. If the court finds that there is no merit to the allegations, then the process ends there. If the application moves to the second hearing, a full trial will be conducted to determine the issue of capacity and the validity of the will itself.
The first hearing
First, it must be established that the requirements for a valid will under sections 4- 7 of The Wills Act, 1996, SS W- 14.1, have been met. This includes that the testator was 18 years or older, that they intended to give effect to their will by signing it, and did sign it, and that it was witnessed and signed by two other individuals.
If these requirements are met, then there is a presumption that the testator had capacity to make their will, and at the first hearing stage, the person challenging the will has the onus of bringing evidence that raise legitimate suspicious circumstances surrounding the capacity of the testator, or legitimate allegations of undue influence. In order to make out a claim of undue influence, the applicant must provide evidence of coercion and influence that overpowered the will of the testator.
In a recent decision from the Court of King's Bench, Bell v Bell, 2022 SKQB 198, the court was conducting a hearing at the first stage of an application to prove a will in solemn form. In that case, the applicant argued that because his deceased mother had cut him out of her will, that this alone was evidence of undue influence. The court made the following comment:
[60] The applicant's evidence attempts to rest this undue influence on the action taken by Laurette, but does not point to evidence that could constitute the basis for undue influence. There is a difference between saying that there was undue influence or that there must have been undue influence because of what Laurette did and pointing to actual evidence potentially capable of establishing undue influence.
This decision is clear that at the first hearing stage of a will challenge, strong evidence to ground the “suspicious circumstances” is crucial, and raising an allegation of undue influence, or lack of capacity, unsupported by concrete evidence to ground those allegations will not be sufficient to warrant a trial. However, when legitimate evidence of incapacity or undue influence is adduced by the attacker of the will at the first stage, the burden then shifts to the propounder of the will to provide uncontroverted evidence that there was capacity and no undue influence upon the testator [Dieno]. If the evidence provided by the propounder of the will on this point is controverted, then a trial must be ordered. In fact, the court has found that if there is any amount of controverted evidence on the issue of capacity, then it is a reversible error not to order a trial, as weighing the evidence and assessing credibility is not the role of the first hearing judge (McStay v Berta, 2021 SKCA 51 at paras 26-27).
Another consideration that the court will take into account at the first hearing stage is proportionality. This means that the court will consider the size of the estate and whether it is appropriate “even in the face of highly suspicious circumstances to order the parties to undergo the lengthy and expensive task of proving the will in solemn form” (Matlock v Matlock, 2015 SKQB 378 at para 43). In other words, if the cost of the litigation is likely to outweigh the amount to be distributed to the beneficiaries, the Court may refuse to order a trial on the issue of capacity even if there is compelling evidence to support the allegation.
The Trial
If the court is satisfied that there is controverted evidence that must be weighed in order to determine the issue of capacity or undue influence, then a full trial will be ordered. At the trial, each side may call witnesses and bring other evidence to establish the capacity, or lack thereof, of the testator, or that they were unduly influenced. It is at this stage that the court will actually make a finding on testamentary capacity, undue influence, or both, and ultimately whether the will is valid.
If the estate cannot prove that the testator had capacity, or was not unduly influenced at the time of execution, then the will will be invalid. If this occurs, and if the testator had no previous will, it would be treated as if there was no will at all, and their estate would be distributed pursuant to the Intestate Succession Act. Alternatively, if the testator had a previous will before the one that was found to be invalid, then their estate would be distributed pursuant to the last valid will that was executed prior to their death.
As outlined, applications such as these can be lengthy, expensive, and not to mention emotionally taxing. While there may be cases where legitimately suspicious circumstances exist surrounding the contents and signing of a will, litigants must always weigh those legitimate concerns with the risks and costs of engaging in the litigation process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
