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In November 2016, the Court of Appeal for Saskatchewan released its decision in an estate law case (Bachman v. Scheidt Estate) in which the daughter of the deceased sought to have her father’s will proven in solemn form.  She alleged that the deceased did not have the necessary testamentary capacity to execute the will in question, and that her brother had unduly influenced their father.

Background Facts

  • The deceased drafted wills in 2005 and 2007 listing his children and his wife as beneficiaries;
  • In 2006/2007, the deceased began to exhibit confusion over everyday tasks.  A specialist assessed him as having mild dementia, and a follow up assessment in 2009 resulting in a finding of mild to moderate dementia;
  • The deceased executed a will in 2009 and named his son the executor of the estate.  In that will he provided that the son was to receive farmland that had gone to his daughter (the applicant in this case) in the previous will.  The deceased advised his solicitor that he and his daughter were estranged and not on speaking terms;
  • The 2009 will was prepared with the legal advice of a solicitor who was well acquainted with the deceased (he had known the deceased for over 20 years, had provided legal advice to him during that time, and had prepared a prior will for the deceased in 2007);
  • On the date of the signing of the will, the solicitor’s notes indicated that he carried on a regular conversation with the deceased and that there were no complaints about memory loss.  The deceased read the will in its entirety, and indicated he understood the contents;
  • The deceased passed away in June, 2014.

The Queen’s Bench Decision and the Issues on Appeal

It’s not overly surprising that the daughter of the deceased who fared less well in the 2009 will sought to challenge the will’s validity.  She brought an application to the Queen’s Bench to have the will proven in solemn form.  Her application was dismissed by the Chambers judge who could not find any genuine issue to be tried with respect to testamentary capacity or undue influence.

On appeal, the daughter raised two issues:

First, she alleged that the Chambers judge misinterpreted the test to prove a will in solemn form.

The Court of Appeal rejected this ground of appeal, finding that the Chambers judge was well aware of the test, and had applied it properly.

Second, she alleged that the Chambers judge made an error in finding there was no genuine issue of testamentary capacity and undue influence.

The Court of Appeal rejected this ground of appeal as well, finding that the Chambers judge correctly identified the elements of testamentary capacity, and had carefully reviewed the affidavit evidence.  The Chambers judge properly placed emphasis on the uncontradicted evidence of testamentary capacity as set out in the affidavit of the deceased’s solicitor.  He relied heavily on this evidence as the solicitor had:

  • 25 years of experience;
  • executed hundred of wills each year (mainly in situations of elderly testators);
  • almost a 30 year relationship with the deceased; and
  • personal familiarity with the testator’s personality and behaviour, including the issue of dementia.

The solicitor’s evidence was that the testator was aware of his property and beneficiaries, and capable of providing instructions for property distribution, even after his dementia diagnosis.

The solicitor’s evidence also supported the conclusion that the son had not exerted any undue influence over his father.

Lessons Learned

In order to have a trial to prove a will in solemn form, an applicant must establish a genuine issue to be tried. To do this, the applicant must be able to point to some evidence which, if accepted at trial, would tend to negative testamentary capacity or support a finding of undue influence.  In Bachman, the daughter failed to point to any such evidence.  In fact, the strong evidence of her father’s solicitor pointed to a contrary conclusion.  The daughter ultimately lost her application, her appeal, and was ordered to bear her own costs.

When testamentary capacity comes into question, it’s no surprise that a court battle may ensue.  However, one must objectively look at the evidence, and carefully assess whether it would truly support a finding of undue influence or lack of capacity upon close examination.  Otherwise time & money may be spent unnecessarily and unwisely.

If you wish to discuss any estate planning issue such as updating a will, minimizing probate fees or selecting an executor, contact the experienced lawyers at Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.


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