CHALLENGING THE WILL by Peter Bryson I cannot resist interposing the old story of the young lawyer who reported to his father, when the latter returned from vacation, that he had finally closed out the Smith estate, whereupon the horrified father said: "Good heavens - we have been living on that estate for years". Wormser, Rene A., The Planning and Administration of Estates (New York: Practising Law Institute, 1961), p.lls
Contents Page I. Introduction.... 1 IL Formalities.... 1 Execution.... 1 Alterations... 4 IlL Testamentary Capacity... 6 Burden of Proof... 8 Insane Delusion... 9 IV. Approval of Contents... 11 V. Fraud, Undue Influence, Suspicious Circumstances............ 12 Fraud... 12 Undue Influence... 12 Suspicious Circumstances........... 14 VI. Conclusion.... 17
L Introduction: There are numerous bases upon which a Will may be challenged by those interested in the property of the deceased. This paper will address challenges to the Will itself rather than claims that may arise outside the four comers of the document (for example, quantum meruit claims for services, or statutory claims that may arise under legislative provisions such as the Matrimonial Property Act or the Testator's Family Maintenance Act). The right to make a Will was not unfettered at common law. The claims of a feudal system, giving rights to one's lord and to some extent, one's family, limited or prevented altogether the disposition of real property by means of a Will. In the Middle Ages, the general law automatically provided that one-third ofa man's personal property went to his descendants or heirs; one-third to his wife and a further third might be disposed of by Will. Although capacity to gift one's personalty by Will eventually became unfettered, this was never the case with respect to real property until legislative reform in the 19 th century. Freedom of attestation is now reflected in Section 3(1) of the Nova Scotia Act which provides: "Any person may devise, bequeath or dispose of by will, executed as in this Act provided, all real property and all personal property to which the person is entitled, either at law or in equity, at the time of the person's death and which if not so devised, bequeathed or disposed of would devolve upon the person's heirs-at-iaw or representatives.". IL Formalities: Execution: We all know that a Will must be signed at its foot by the testator and two witnesses, both of whom must be present when the testator signs. We are also all familiar with the formality that a bequest to a witness of the Will or to the wife or husband of such witness is void unless there are two other witnesses to the Will besides such person (Wills Act, Section 12). These requirements are embodied in Sections 6 and 7 of the Act which provide:
2 "6. No will is valid unless it is in writing and executed in manner hereinafter mentioned: ( (a) it shah be signed at the end or foot thereof by the testator or by some other person in the testator's presence and by the testator's direction; (b) such signature shah be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (c) such witnesses shah attest and shah subscribe the will in the presence of the testator, but no form of attestation is necessary." "7 Every wih is, so far only as regards the position of the signature of the testator or of the person signing for the testator, deemed to be valid if the signature is so placed at, after, fohowing, under, beside or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by such signature to the writing signed in the will, and no such will is affected by the circumstances that (a) (b) (c) (d) the signature does not fohow, or is not immediately after, the foot or end of the will; a blank space intervenes between the concluding word of the will and the signature; the signature is placed among the words of the testimonium clause or of the clause of attestation, fohows, is after or is under the clause of attestation, either with or without a blank space intervening, or follows, is after, is under or is beside the names or one of the names of the subscribing witness; the signature is on a side or page or other portion of the paper or papers containing the wih whereon no clause or paragraph or disposing part of the will is written above the signature; or ( e) there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature
3 and the enumeration ofthe above circumstances does not restrict the generality of the above enactment, but no signature is operative to give effect to any disposition or direction which is underneath or which follows it nor does it give effect to any disposition or direction inserted after the signature was made." It is permissible for the testator to make some mark which is intended to represent his or her name. Execution by someone incapable of making his mark with the assistance of someone else who guides his hand is valid (Jl.e White, 21 M.P.R. 331, [1948] 1 D.L.R. 572, N.S.C.A.; Re Bradshaw Estate (1988),30 E.T.R. 276, 90 N.B.R. (2d) 194 (prob.ct.)). The Will may be signed by another person in the testator's presence and at his direction (Wills Act, 6(a), supra). It is not necessary that the testator sign the Will in the presence of two witnesses if he has previously signed it and then acknowledges his signature in the presence of those witnesses subsequently (Wills Act, 6(b), supra). However, for an acknowledgment to be valid, three facts must be proved: (a) That the testator's signature was on the document pnor to the acknowledgment; (b) That the witnesses saw or were given an opportunity to see the testator's signature. The testator's saying that he had signed the document without the witnesses either seeing or having an opportunity to check is insufficient (Blake v. Blake (1882), 7 P.D. 102); (c) That either by words or conduct, the testator acknowledged his signature. For example, if a third party, in the presence of the testator asks two people to witness the
4 signature of the testator, that would be sufficient acknowledgment (Re Shewchuk (1968),67 W.W.R. 564, 1 D.L.R. (3d) 288 (Alta.C.A.)). A Will must be "attested" by witnesses. They need not know the signature they are attesting is the signature to a Will, but they must be aware that the testator signed the document in question. The witnesses' signatures can be an initial or a mark (Re Benjamin (1934), 150 L.T. 417). The Act permits the testator to acknowledge his signature but it does not permit a witness to do so. We have all had experience of Wills where witnesses cannot clearly recollect who signed what when but they can identify their signature on the Will document. Fortunately, there is a presumption of validity where the Will on the face of it is apparently duly executed (Re Mitchell (1960),32 W.W.R. 337, 25 D.L.R. (2d) 399 (Alta.); Re Kane (1979),5 E.T.R. 44 (N.S.Prob.Ct.)). The presumption applies with different weight according to the circumstances. For example, where a Will concludes with a proper attestation clause, the Court will assume the attestation is accurate. The onus of proving due execution is on those propounding the Will, but they are, of course, assisted by the presumption. If the witnesses are dead, proof that the signatures are in their handwriting will be sufficient and it will be presumed that the Will was executed while both were present (Re Riva (1978),3 E.T.R. 307 (Ont.Surr.Ct.)). Alterations; The Wills Act requires that alterations to a Will be executed in the same manner as the Will itself, failing which the alteration will have no effect. The relevant part ofthe Act is Section 20 which says:
5 "20 No cancelling by drawing lines across a will or any part thereof, and no obliteration, interlineation or other alteration made in any will after the execution thereof, is valid or has any effect except so far as the words or the effect of the will before such cancelling or alteration are not apparent, unless such cancelling or alteration is executed in the manner by this Act required for the execution of the will, but the will, with such cancellation or alteration as part thereof, is deemed to be duly executed if the signature of the testator, made by the testator or some other person in the testator's presence and by the testator's direction, and the subscription of the witnesses, is made in the margin or on some other part of the will opposite or near to such cancellation or alteration, or at the foot or end of or opposite to a memorandum referring to such cancellation or alteration and written at the end of some other part of the will." [Emphasis added] It is often a nice question what constitutes "an alteration". Obviously crossing words out and inserting a new word would fit the definition; but blank spaces completed in a different ink or type would not ordinarily be regarded as an alteration. The emphasized words provide an exception to the requirement that changes must be executed in accordance with the usual requirements. Ifthe obliteration is complete, it is effective and need not be signed and witnessed. There is an initial presumption that a will was altered after execution and not before. This presumption is rebuttable by evidence of subsequent execution of the Will (Thomas G. Feeney, The Canadian Law of Wills, 3 n1 ed. (Toronto: Butterworths, 1987) VoU at p.131). The presumption that the Will was altered after execution is quite easily rebutted (Ibid, footnote 118). Evidence of statements made by a testator at the time of, or prior to execution, showing an intention to benefit an individual that is consistent with the alterations, is admissible to prove that the alterations pre-date execution. Statements made subsequently by the testator are not admissible for that purpose (MacDonald, Sheard and Hull on Probate Practice, 4th ed. (Toronto: Carswell, 1996) at p.79).
6 The difficulty in ascertaining whether alterations should be incorporated into the Will is demonstrated by the case of Re Murphy Estate (1998) 170 N.S.R. (2d) at p.l. In Murphy, the deceased executed a "form Will" in which she gifted her cottage to one of her daughters. That provision was altered by crossing the name of the daughter out and substituting the name of one of the testatrix's sons. The change was initialled by the testatrix but the change was not witnessed. In addition, the testatrix had prepared and signed a new "form Will" in which she gifted the property to her son. This second Will was not witnessed as required by the Wills Act. The evidence of the witnesses to the first Will on whether or not the changes had been made prior to execution was ambiguous. Expert evidence confirmed that three different inks had been used to make alterations to the original Will but it was not possible to say when the alterations had been made. The expert was satisfied that all alterations were made in the handwriting of the testatrix. The evidence of one ofthe witnesses to the Will was that she thought some changes had been made to it at the time the Will was witnessed, but her evidence was not strong and in the result, the Trial Judge was not satisfied that the presumption that the changes had been made after execution, had been rebutted. IlL Testamentary Capacity: The oft cited case oflegerv. Poirier, [1944]3 D.L.R. 1 (S.C.C.); [1944] S.C.R. 152, suggests that the test for mental capacity is one of "sound and disposing mind and memory". According to the Supreme Court of Canada, the executors must show that the testatrix had: "a 'disposing mind and memory' [and is] able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects,just claims to considerations, revocation of existing disposition, and the like... ". This demonstration of knowledge involves illustrating that the testatrix: (a) Had a knowledge of her assets and their worth;
7 (b) Had a knowledge of her relations and next of kin; (c) Was aware of who might reasonably expect to inherit and have sound reasons for excluding those individuals; (d) Had sound reasons to change a scheme of distribution set out in previous wills. Capacity is often an issue with an elderly testator. The degree of capacity that must be retained by the elderly testatrix was discussed in Den v. VanCleve (2 Southard - 660), and Banks v. Goodfellow (1870) L.R. 5 Q.B. 549 and cited with approval in the more recent Nova Scotia judgement ofrearmitage's Estate (1990), 95 N.S.R.(2d) 91 (probate Ct) (aff'd (1992) 106 N.S.R. (2d) 101, App.Div.). "By the terms 'a sound and disposing mind and memory', it has not been understood that the testator must possess these qualities of mind in the highest degree; otherwise few would make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done, for even this would disable most men in the decline of life; the mind may be in some degree debilitated, the memory may have become in some degree enfeebled and yet there may be enough left clearly to discern and discreetly to judge, of all those things and all those circumstances which enter into the nature of a rational, fair and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory". As a practical matter, the elderly or ill testatrix must be able to do more than simply assent to propositions put to them by others present. And their ability to understand must extend beyond the immediate and familiar. In Leger, supra, at p.12 [1944,3 D.L.R.], Rand, J. said: "By the law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory so as to be able to make a
8 disposition of his estate with understanding and reason (quoting from Marquess of Winchester's case, 77 E.R. 287)... Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole, and this I am satisfied was not present here." Burden of Proof' The onus on executors to prove capacity was expressed inre Collicutt Estate (1994), 128 N.S.R.(2d) 81 (probate Ct.) at 92, and affd at (1994),134 N.S.R.(2d) 137 (C.A.): "If there is no evidence of incapacity, the will must be probated for every person is presumed sane; but once the will is attacked, whether it has been admitted to probate in common form or not, the burden of proof of testamentary capacity is on the executor or other persons who propound the will for probate. The burden of proof is the same whether the application to prove the will in solemn form was made before or after it was admitted to probate. The onus is on the propounder to establish, on a balance of probabilities, testamentary capacity". In the recent Supreme Court of Canada decision of Vout v. Hay, [1995] 2 S.C.R. 876 at page 889, Sopinka, J. discussed the burden of proof as follows: "... Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. "
9 Medical evidence of capacity is always desirable in cases of any doubt. However, any medical assessment should be contemporaneous with execution of the Will because capacity can change from day to day. A confused, elderly person may have lucid moments. Medical evidence that is not contemporaneous will often be discarded in favour ofthe evidence oflaywitnesses more familiar with the deceased at the time the Will was executed. InArmitage, supra, the testator made his final Will at the age of 88, having suffered a stroke the year before. He clearly experienced periods of confusion, forgetfulness and hallucinations both before and after making his Will. Medical experts opined that he lacked testamentary capacity, but the deceased had not been examined at or near the time he made his Will and the doctors did concede the possibility that the deceased could have had lucid intervals. An experienced lawyer took instructions from the testator and attended execution ofthe Will. There was lay evidence from interested parties both supporting and challenging capacity. In the result, the Court relied upon the experienced solicitor who had drawn the Will and had spent considerable time with the testator explaining it to him and confirming his competency, prior to execution. This result was upheld on appeal. Similarly, in Re Gregory (1979),37 N.S.R. (2d) 640 (NS Prob.Ct.), the evidence of the lawyer who prepared the Will was preferred to that of the family physician who was doubtful about competency, although he had not observed the testatrix around the time that she had made her Will (with respect to the acceptance of the evidence of medical and legal practitioners relating to competency, also see Re Fergusson (1980), 40 N.S.R. (2d) 223 (NS Prob.Ct.); Re Morrison Estate (1982) 52 N.S.R. (2d) 640 (App.Div.); and Thoms v. Thoms (1985), 68 N.S.R. (2d) 30 (App.Div.)). Insane Delusion: Added to the foregoing four criteria regarding capacity, outlined in Leger, supra, a fifth "negative test" often referred to is that there be an absence of "insane delusion". The leading case most often quoted in this regard is Banks v. Goodfellow, supra where ChiefJustice Cockburn said at p.565:
10 "It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extend of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, ifthe mind had been sound, would not have been made. Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or a version take the place of natural affections;... " [the will ought not to stand] [Emphasis added] It is not enough to lead evidence that the testator may have been confused or suffer under delusions from time to time. In order to invalidate a Will, a testator must be suffering an insane delusion at the time of making the Will. Moreover, the delusion must cause the disposition in the Will. The delusion cannot be attributable to misinterpretation or capriciousness: Taylor Estate v. McCully (1995), 12 E.T.R. (2d) 131 (Ontario Court ofjustice). supra, at p.34: Delusions in the context of testamentary capacity have been described in Feeney, "Delusion is a belief in a state of facts in which no rational person would believe. A perfectly capable businessman may suffer from delusions that render him incapable of making a will, but a person may suffer from a delusion or delusions and nevertheless be capable of making a will. Irrational beliefs falling short of producing general insanity, and which concern matters that have no relation to the testator's property, or the persons he might be expected to benefit, can have no bearing on the question of testamentary power... An aversion to wife or children, or other relatives that the testator might be expected to benefit, may amount to insanity and wills are often
11 attacked on this basis by disappointed relatives... It is a difficult question in these cases to decide whether the testator was merely eccentric in his aversion to those attacking the will or whether he actually suffered delusions concerning them and that, if he did, the delusions were the cause of his failure to provide for his family. If the aversion can be explained, or if it is found that the testator was merely feigning some belief in order to rationalize his failure to provide for his family, then, of course, there is no delusion in fact." IV. Approval of Contents: Apart from compliance with the formalities of the Wills Act and capacity, the propounder of a Will must also show that the testator knew and approved ofthe contents of the Will. Ordinarily, knowledge and approval of the contents ofa Will can be established if the propounder shows that the testator had capacity and signed the Will. However, the burden on the propounder may increase depending on the circumstances. The most satisfactory kind of evidence of knowledge and approval of contents is either that the Will was prepared in accordance with the instructions the testator had given to a solicitor or that it was read over to the testator by the solicitor. As Lord Hatheriey said in Guardhouse v. Blackburn (1866), L.R. 1 P.& D. 109 at 116:... if a man signs any instrument, he being competent to understand that instrument, and having had it read over to him, there is a very strong presumption that it has been duly executed, and that very strong evidence is required in opposition to it in order to set aside any instrument so executed." The Court may infer from the document itself that the testator knew and approved of its contents. In Christian v. Intsi/ul, [1954]1 W.L.R. 253 (p.c.), the testator who was admittedly of poor eyesight, handed a document to a former solicitor's clerk who at the testator's request typed it out for him. It was then signed by the testator and witnessed as his Will without it having been read over to him. The Will was an elaborate one with many detailed bequests. The Privy Council concluded that the man had knowledge ofthe contents of the Will simply because the document was
12 sufficiently complicated that no one who was not intimately acquainted with the testator's life could possibly have created it. Knowledge and approval of the contents of the Will do not require technical legal understanding of the words. If the testator is aware of the contents of the Will-of the language used - it is immaterial if the document fails to accomplish some result not clearly intended by that language (see discussion in MacDonnell, Sheard and Hull, supra, at pps. 47-51). v. Fraud, Undue Influence and Suspicious Circumstances: Fraud: A Will may be set aside on the grounds of fraud. Fraud will arise where there is a false representation regarding the character or status of an individual. For example, a beneficiary purports to marry the testator when she is in fact already married voids a bequest to her (Wilkinson v. Joughin (1866), L.R. 2 Eq. 319. In Mayrand v. Dussault (1907),38 S.C.R. 460, the Supreme Court of Canada upheld the rejection of a Will prepared by the testator favouring his brother who induced the testator to believe, while ill, that his wife had been the cause of his illness. Undue Influence: In Re Marsh Estate (1990), 99 N.S.R.(2d) 221 (probate Ct.) affd (1991), 104 N.S.R.(2d) 266 (S.C.), Justice Bateman considered the meaning of "undue influence". Her Ladyship quoted from Feeney, supra, at p. 42: "The burden of proof of undue influence is on the attackers of the will to prove that the mind of the testator was overborne by pressure exerted by another person. It is not enough to show mere persuasion; the influence exerted on the testator must amount to coercion to be undue influence. Coercion has been defined to mean that the testator has been put in such a condition of mind that ifhe
13 could speak his wishes to the last he would say 'This is not my wish but I must do it." [Emphasis added] The burden of proof with respect to fraud and undue influence has always remained with those attacking the will: Craigv. Lamoureux, [1920] A.C. 349; Riach v. Ferris, [1934] S.C.R. 725, [1935] 1 D.L.R. 118, recentlyaffmned by the Supreme Court of Canada in Voutv. Hay, supra. Undue influence requires positive proof of coercion. Mere opinion - even of a solicitor -that a Will was obtained by undue influence, is not sufficient unless there is positive evidence of same: see Re Nickerson Estate (1996), 14 E.T.R. (2d) 207, 155 N.S.R. (2d) 289 (prob.ct.), Decision of Tid man, J. of Nov ember 6,1996. In Marsh, supra, Mrs. Marsh was an elderly lady in weak condition although competent. She had been befriended by an Anglican minister to whom she decided to gift her home. Her brother-in-law learned of this gift and intervened, as a result of which Mrs. Marsh made a Codicil gifting the home to her sister and in the alternative, to her brother-in-law. In concluding that undue influence had been established, Justice Bateman relied uponmrs. Marsh's isolation, weakened condition and dependence on her brother-in-law for looking after her financial and other affairs. In conversation with Mrs. Marsh, the brother-in-law implied that he would no longer do anything for Mrs. Marsh if she were going to leave the house. After telling her that the Minister should now hold her Power of Attorney and do all her business, Mrs. Marsh replied: ''No, 1 need you, Frank, you can't walk out on me". 1 said, "what do you mean?". 1 said, "he can do the work, you've appointed him". So she said, "no, 1 need you", she said, "I want to change my Will". 1 said, "well that's up to you". So she said ''would you look after it?". 1 said "I'll call the trust company". So 1 called the trust company... " Bateman said: In concluding that undue influence had been exercised on Mrs. Marsh, Justice
14 "Mr. Fryer presents as a very opinionated, confident and outspoken man. He clearly felt that Reverend Harris had inappropriately procured the bequest and thus was justified in speaking strongly against it. Had he only spoken against the bequest to the Reverend Harris I would have had more difficulty in finding undue influence. On the facts before me, however, Mr. Fryer went further than that. He implicitly, if not expressly, threatened to withdraw his assistance from Mrs. Marsh if the Will was not changed. In Mrs. Marsh's poor physical situation resulting in her complete dependence on Mr. Fryer for her business affairs and her minimal contact with other support systems, I fmd that the influence exercised by Mr. Fryer was undue, even excepting his version of the exchange between him and Mrs. Marsh. I am further persuaded to this view given that Mr. Fryer, without express discussions with Mrs. Marsh, took it upon him self to give specific instructions as to the manner of the change in the Will... ". [Emphasis added] In Marsh, the Court had virtually direct evidence of the undue influence from the mouth of the undue influencer. For obvious reasons, this will be rare. Nevertheless, the Court is prepared to infer undue influence in a proper case. See, for example, MacKenzie, infra, p.l3. Suspicious Circumstances: Chief Justice Duff in Riach v. Ferris, supra, adopted the following definition of suspicious circumstances from Davey, LJ., in Tyrrell v. Painton, [1894] P.151 at pps.159-160: ''The principle is that, wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind ofthe testator, the Court ought not to pronounce in favour of it unless that suspicion is removed". (p.1019 of[1935] 1 D.L.R.). The most common suspicious circumstance referred to in the case law occurs when the person propounding the Will either prepared it or obtained its preparation and took a substantial benefit under it. Other suspicious circumstances include a sudden change in a testator's Will, frail
15 physical and/or mental capacity and close supervision by those benefitting under the Will so as to restrict contact with family members. Facts following the actual preparation of the Will may be relevant in determining whether circumstances were suspicious at the time the Will was prepared and executed (Eady, et al v. Waring, (1974) 2 O.R. (2d) 627, 43 D.L.R. (3d) 667 (C.A.)). The doctrine is really a restating ofthe question of whether or not a Will represents the "true Will" of the deceased. The suspicion can relate to either the testamentary capacity of the deceased or whether the deceased made the Will under undue influence. In Vout v. Hay, supra, the Supreme Court of Canada had an opportunity to review the doctrine of suspicious circumstances. Sopinka, J. set forth the following propositions: "1. Suspicious circumstances may be raised by (a) circumstances surround the preparation of the Will; (b) circumstances tending to call into question the capacity ofthe testator; or (c) circumstances tending to show that the free will ofthe testator was over borne by acts of coercion or fraud. 2. When suspicious circumstances are present (a) the civil standard of proof on a balance of probabilities applies; however, that evidence must be scrutinized III accordance with the gravity ofthe suspicion; (b) if, after overcoming the initial burden that the formalities have been complied with and the testator has approved the contents ofthe will, the propounder of the will reassumes the legal burden of establishing testamentary capacity; ( c) the burden ofthose alleging the presence of suspicious circumstances can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity;
16 (d) the burden of proof on those alleging undue influence or fraud remains with them throughout." From the foregoing, it can be seen that the doctrine relates both to capacity and to undue influence. With respect to capacity, the burden of proof remains with those propounding the Will; with respect to the allegations of undue influence or fraud, the burden of proof rests on those alleging the same. A recent example of the relation between testamentary capacity, undue influence and suspicious circumstances is MacKenzie v. MacKenzie Estate (1998), 162 D.L.R. (4 th ) 674, 169 N.S.R. (2d) 224 (N.S.C.A.). Mr. MacKenzie made a will on October 9, 1991, providing for his wife in trust, giving his house and farm to one son, his woodland to another and dividing the residue equally among seven children following his wife's death. He was weak with a terminal illness and his caregivers, his wife, Marie, and son, Graham, isolated him from some of his other children and persuaded him to change his will in their favour which he did on May 31, 1992. The trial judge upheld this second will as proved in solemn form. The Court of Appeal set aside the second will, relying on suspicious circumstances to find that there was no testamentary capacity. In addition, however, the Court of Appeal was prepared to infer from the suspicious circumstances that Mr. MacKenzie had been unduly influenced by his caregivers to change his will in their favour. The second MacKenzie will was prepared by a solicitor who did not take notes or make the usual inquiries about assets. The solicitor never consulted Mr. MacKenzie alone but always with his wife present. He did not discuss the other MacKenzie children who were being left out of the new will. He was not familiar with the will executed six months previously. In coming to the conclusion that the undue influence was exercised, the Appeal Court relied upon the following exchange between the deceased and his son, some weeks prior to execution of the second Will [at para.81l:
17 "I [the son] went down, and down in the room and I was talking to him 'how are you making out?'. He said, 'well it's been pretty rough the last while'. And I said, 'do you need you know do you need, is it medication or what?'. He said, 'no'. He said, then started to break down. He went quiet for a bit. Then he broke down and he said, 'for a moment's peace, they can have the whole goddarn thing'. He said, 'I'm going to sign everything over to them. They can have it'." The Court considered this exchange to be admissible to disclose the state of the testator's mind prior to the making of the challenged Will. VI. Conclusion: In order to successfully propound a Will, an executor or administrator must demonstrate that the formalities of due execution have been observed. In this regard, there are presumptions which will assist the propounder particularly where there is a proper attestation clause. The propounder of a Will must also establish capacity and the burden of proof lies with the propounder to satisfy that the testator had capacity. However, the propounder is assisted by a rebuttable presumption, once it is proved that the Will was duly executed. It is also necessary to show that the deceased knew and approved of the contents of the Will, but once again the onus of proof is not difficult to meet, provided that the testator read the Will or had it read to him. While medical evidence is often decisive in establishing capacity to make a Will, this evidence will be discarded in favour of credible contemporaneous lay testimony. The burden of proof shifts to those attacking the Will when alleging fraud or undue influence. There is nothing wrong with attempting to influence a testator; the question in each case will be whether the influence was coercive. The doctrine of suspicious circumstances can be
18 relevant both to the question of establishing capacity and to that of undue influence. The propounder of the Will must dispel any suspicious circumstances. The burden of proof with respect to undue influence or fraud remains with those alleging it throughout, although they may be aided by the doctrine of suspicious circumstances because the propounder of the Will may not be able to dispel that suspicion.