When does it raise suspicious circumstances?

As a person nears the end of their life, they may wish to make last-minute changes to their estate planning. If they want to change their Will, this needs to be done carefully.

For a Will to be valid, at the time of execution, the will-maker must:

1. have the capacity to make a Will;
2. have knowledge of its contents; and
3. approve of the contents

Normally, the law presumes that a person had knowledge and approved the contents of a Will by making and signing it. However, “suspicious circumstances” will rebut this presumption.  When suspicious circumstances arise, the person seeking to uphold the Will must prove that the will-maker had capacity, knowledge and approval.

The case of Sommer v British Columbia (Public Guardian & Trustee), 2015 BCSC 1947 is a reminder about the intricacies and potential pitfalls of changing a Will when a person is in failing health.

In 2010, the deceased made a Will leaving her estate to one of her two grandsons. In 2012, the 92 year old will-maker suffered a fall and was admitted to hospital. While in the hospital, and only a few days prior to her death, the will-maker revoked the 2010 Will and created a new one, leaving her estate to her other grandson’s children, and several cash legatees.

The beneficiary of the 2010 Will challenged the validity of the 2012 Will. The Court was satisfied that suspicious circumstances existed given the nature of changes to the Will, that the will-maker had suffered a fall and was in the hospital, and that she had been tested for capacity. As a result, the executor had to prove that the will-maker had capacity, knowledge and approval of the 2012 Will.

In finding that the 2012 Will was indeed valid, the Court placed significant weight on the drafting lawyer’s evidence including:

• the lawyer met with the will-maker three times over three days;
• the will-maker was clear that she did not want to provide in her Will for the plaintiff;
• the lawyer was satisfied that the will-maker knew what property she owned and who the appropriate people were that would have a claim; and
• the lawyer met with the will-maker independently and formed the opinion that she was not being influenced by others.

Further, the deceased had made previous consistent statements to other witnesses that she was intending to change her Will and remove the plaintiff as a beneficiary. Accordingly, the Court upheld the 2012 Will.

This case is a reminder of the conflicts that can arise when Wills are revoked and redone in unusual circumstances. It is also a prime example of how the lawyer’s evidence can play a crucial role in the Court’s decision to uphold the Will.  In fact, it is the lawyer’s professional duty to evaluate the will-maker’s capacity and ability to understand the nature and effect of the Will they are signing.

The best way to ensure that late in life changes or “deathbed Wills” withstand a challenge is to retain a lawyer to interview the will-maker, provide advice, prepare the Will and oversee the signing of the Will.

If you have questions, contact our Wills & Estates Team – we’re here to help.