For a will to be valid, not only is it important that formal statutory requirements be satisfied, but the testator (being the person executing the will) must also have testamentary capacity to make the will. In addition, if the testator was coerced into making a will that does not express the testator’s wishes, the will can be set aside. Although there is a presumption regarding the validity of a will that has been duly executed with the requisite formalities (after having been reviewed by the testator who appeared to approve of the contents), the presumption will be rebutted by the existence of suspicious circumstances.
Recently, in the case of Graham v Graham, 2019 ONSC 3632, the Ontario Superior Court of Justice considered the validity of a Will and a Power of Attorney in a situation where the testator/grantor’s child had significant involvement in the preparation of such Will and Power of Attorney for Property (“POA”), ultimately finding that the Will and POA were both invalid.
Jacqueline Graham (“Jackie”) was in poor health when her husband died intestate in October 2015. After his death, Jackie was told that her cancer was terminal and that she was a candidate only for palliative care. She was hospitalized from November 22, 2015 to December 7, 2015, and then returned to the hospital on December 22, 2015 because of a “pain crisis.” She received heavy medication on December 22 and 23, 2015 (December 23, 2015 being the day she signed her Will and POA).
Since Jackie’s husband’s death, her son, Robert, and his wife, Tammy, stepped in to assist Jackie with her day-to-day activities. In mid-December 2015, Tammy undertook to search for and select a lawyer to prepare Jackie’s Will and POA.
On December 23, 2015, one day after Jackie’s admission to the hospital, a lawyer, the lawyer’s legal assistant, Robert, Tammy and Jackie met to discuss the contents of Jackie’s Will and the POA. Robert was named as the estate trustee and sole beneficiary under the Will, as well as the attorney under the POA. Tammy was named alternate estate trustee and alternate attorney. Jackie’s other three children were not mentioned in either the Will or the POA.
On January 4, 2016, Robert used the POA to transfer Jackie’s house to himself as sole owner for $1.00. On January 8, 2016, Jackie died of cancer.
One of Jackie’s other children, Timothy, brought this application to challenge the validity of the Will and POA, claiming: (i) the preparation and execution of Jackie’s Will and POA were done in suspicious circumstances; and (ii) Robert and Tammy exerted undue influence on Jackie, such that she felt she had to comply with their wishes.
The parties were satisfied that the Will and POA were duly executed with the requisite formalities. Therefore, the next step was to determine whether suspicious circumstances surrounded the preparation of the Will. The parties agreed that suspicious circumstances may be raised by the circumstances: (i) surrounding the preparation of the Will; (ii) tending to call into question the capacity of the testator; or (iii) tending to show that the free will of the testator was overborne by actions of coercion or fraud.
Justice Sheard found the following factors supported the conclusion that suspicious circumstances existed at the time of the preparation of the Will:
- Jackie was suffering from physical, emotional and mental impairment and was heavily medicated at the time of execution of the Will.
- Until she signed the Will, Jackie had never had a Will and would otherwise have died intestate. Jackie’s husband had died intestate, and Jackie would not have made a Will without intervention from Robert and Tammy. The existence of the Will constituted a significant change. Jackie could have made a Will earlier but chose not to do so.
- The reasons Jackie gave the lawyer for excluding her other children were factually incorrect. She was mistaken as to which child was estranged. Jackie falsely believed that Robert and Jackie’s daughter had an agreement to share the inheritance, and therefore, there was no need to provide for her in the Will.
- The only reason Jackie had a POA was to transfer the house prior to her death in order to save some money in estate administration tax (also referred to as probate tax).
- Robert and Tammy orchestrated all interactions with the lawyer, including: searching for a lawyer; providing instructions; arranging the meeting; and sitting in on the meeting. They organized all will-making steps and supplied reasons why the other children were excluded.
Justice Sheard had no hesitation in finding that suspicious circumstances existed surrounding the making of the Will and the POA. As such, the legal burden shifted to Robert (as the person seeking to uphold the Will) to prove, on a balance of probabilities, that Jackie had testamentary capacity and knew and approved of the Will and POA. He was not only required to show that Jackie had the capacity to communicate her wishes, but also that Jackie’s “expressed wishes were the product of a sound and disposing mind.” Robert was tasked with establishing, on the evidence, that Jackie:
- understood the nature and effect of a will;
- was able to recollect the nature and extent of her property;
- understood the extent of what she was giving under the Will;
- remembered the persons that she might be expected to benefit under the Will; and
- understood the nature of the claims that may be made by persons she excluded from the Will.
Robert was unable to satisfy his evidentiary burden. The following are some factors Justice Sheard considered in reaching this conclusion:
- There was no evidence that Jackie read or was read the Will or the POA.
- There was no evidence she knew the value of her house (which was treated as the extent of her property).
- The evidence was unclear as to how Jackie formed the factual basis for her dispositions. She appeared to have operated with the information given to her by Robert and Tammy. Independent third parties disproved Jackie’s mistaken factual beliefs.
- Jackie’s mistaken belief regarding the estrangement of the wrong child affected the dispositions. Jackie chose not to provide for this child in the Will solely because of this mistaken belief.
- No witnesses or other evidence from health professionals, the lawyer or independent third parties supported the conclusion that Jackie had testamentary capacity when the Will was executed.
Given the findings referenced above, Justice Sheard did not provide an exhaustive analysis regarding Timothy’s claim that Robert exerted undue influence. Justice Sheard did, however, note that a high onus is placed on the person making allegations of undue influence. Justice Sheard was not persuaded that the suspicious circumstances and the influence exerted by Robert and Tammy rose to the level of undue influence. Instead, in providing so much assistance to Jackie, Robert and Tammy took over Jackie’s autonomy in a much more subtle way.
The POA was deemed invalid, in large part due to the same circumstances present in the preparation of the Will, and the transfer of Jackie’s house to Robert was set aside.
It is also noteworthy that, when a parent transfers property to an independent adult child, there is a presumption of resulting trust. The house transfer was not intended to be a gift to Robert. The house was transferred to save on probate tax but was to be distributed as part of the estate administration process with Jackie’s other estate assets. The POA merely enabled this transfer to happen while Jackie was still alive. Since the house transfer was not a gift, Robert took title to it as trustee.
By executing a will, a testator is given the opportunity to have a say in how his or her assets are to be distributed on death. This case emphasizes the importance of implementing the wishes of the testator and not of those around him or her. It also serves as an important note to testators and their beneficiaries. The decision to make a will and the dispositions a testator chooses to make are personal and must be made with a clear mind and free from overbearing influences.
Generally speaking, estate planning lawyers will ask the testator a number of questions during the planning stage that are geared towards assessing the testator’s capacity to execute the will and whether the testator is falling victim to undue influence. It is an important part of the process for all individuals but particularly for those who are more vulnerable. Cases such as Graham v Graham demonstrate that such vulnerability may arise as a result of physical, mental or emotional impairment.
 Succession Law Reform Act, RSO 1990, c S26, subsection 4(1) requires that a valid will is signed by the testator in the presence of at least two signing witnesses. Section 3 of the Succession Law Reform Act states that a will is only valid when it is in writing.
 Vout v Hay,  2 SCR 876 at paras 26-27.
 Although the decision does not explicitly state that this is a power of attorney for property, the facts of the decision appear to support the assumption that it was a power of attorney for property.
 To die “intestate” is to die without a will.
 For the purposes of the application, Justice Sheard was asked to assume that Jackie’s estate essentially consisted of the house and its contents.
 Graham v Graham, 2019 ONSC 3632 [Graham] at para 23.
 Graham ibid at para 28
 Graham ibid at paras 30-31. See also Vout v Hay,  2 SCR 876 at paras 26-27.
 Graham ibid at para 34.
 Graham ibid at para 33.
 Graham ibid at para 37.
 Graham ibid at para 38.
 Graham ibid at paras 39-49.
 Graham ibid at paras 50-53.
 Graham ibid at paras 69, 71 and 77.
 Graham ibid at para 90.
 I.e. subject to evidence to the contrary, the transfer is presumed not to be an outright gift; Pecore v Pecore, 2007 SCC 17; Graham ibid at para 102.