Canada Case Law

Marshall Estate

Court

Supreme Court of British Columbia

On the balance of probabilities the court accepted contemporaneous solicitor records, multiple private meetings, a geriatric expert report and medical records showing the testator understood the nature and consequences of a will and the assets and natural objects of bounty; there was no credible evidence of domination or undue influence by beneficiaries and no well-grounded suspicious circumstances to rebut the presumption of validity; summary determination was therefore appropriate and the 2015 will was proven in solemn form and probate granted to the named executors.

Source excerpt

• Testamentary capacity
• Undue influence
• Solemn form probate
• Conversion of petition to action/hybrid procedure
• Costs and indemnity

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Wicklund v. Denis and Yvone Blakely 2015 Joint Partner Trust

Court

Supreme Court of British Columbia

The court upheld a 2015 trust amendment, finding Yvonne Blakely had capacity, no suspicious circumstances or undue influence were proven, and the plaintiffs’ claims were dismissed.

• Inter vivos vs testamentary trust
• Testamentary capacity
• Suspicious circumstances
• Undue influence
• Hearsay admissibility
• Business records exception

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Wong v. Woo

Court

Supreme Court of British Columbia

The court upheld Grace Chui Wong’s 1987 will, rejected three later handwritten notes as invalid testamentary documents, and adjourned the vacant possession application.

• Validity of will
• Testamentary capacity
• Undue influence
• Curative powers (wesa s.58)
• Probate in solemn form
• Vacant possession

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Abbruzzese v. Tucci

Court

Court of Appeal for Ontario

The trial judge's factual findings that the testatrix was vulnerable, lacked sufficient testamentary capacity at the time of the 2016 will and property transfer, and was subject to Bernadette's undue influence were open on the record, were properly supported by the evidence, and were correctly applied to legal principles; accordingly the 2016 will and Property Transfer were set aside and the Court of Appeal dismissed the appeal, awarding costs to Angela fixed at $25,000 to be paid from Bernadette's share of the estate.

Source excerpt

• Setting aside a will
• Property transfer challenged as resulting from undue influence
• Presumption and rebuttal of undue influence
• Passing of accounts
• Costs orders payable from estate proceeds

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Calvert v. Menzies

Court

Supreme Court of British Columbia

The court found John Menzies breached his POA duties and exercised undue influence over a $290,000 deposit, awarding the estate $403,100 in damages.

• Breach of fiduciary duty under poa act
• Statutory record-keeping obligations
• Presumption and rebuttal of undue influence
• Accounting by attorney
• Occupational rent
• Punitive damages

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Matthews v. Matthews

Court

Supreme Court of Nova Scotia

The April 24, 2019 handwritten paper was an incomplete draft not signed by the testatrix, lacked certainty, did not evidence a fixed and final testamentary intention and thus cannot be treated as a will under s.8A; the March 27, 2015 document was duly executed in a solicitor's office, the presumptions of capacity and knowledge were not rebutted by evidence of suspicious circumstances or undue influence, and therefore the 2015 will is the valid will of Mary Josephine Burke and the application for proof in solemn form is dismissed.

Source excerpt

• Testamentary intention
• Substantial compliance (s.8a)
• Presumption of knowledge and approval
• Suspicious circumstances
• Accounting by attorney for property

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Billard v. Billard Estate

Court

Nova Scotia Court of Appeal

The appeal was dismissed because the Court was not persuaded that the trial judge erred in law or made a palpable and overriding error in finding the testator lacked testamentary capacity, did not approve the will's contents, and was subject to undue influence; appellate deference to the judge's factual findings warranted affirmance.

Source excerpt

• Testamentary capacity
• Undue influence
• Validity of will
• Costs

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Palichuk v. Palichuk

Court

Court of Appeal for Ontario

Uncontroverted expert evidence that Nina was capable, coupled with the presumption of capacity under the SDA, supported the application judge's finding that no guardianship was warranted; because Nina was found capable the court correctly declined to adjudicate undue influence or to give declaratory relief on the validity of testamentary or estate planning instruments while she is alive (would be hypothetical and a misuse of judicial resources); accordingly the order removing Linda from the BMO account and the costs award were upheld.

Source excerpt

• Testamentary capacity
• Guardianship order
• Undue influence
• Continuing power of attorney
• Inter vivos transfer
• Declaration of trust

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Billard v. Billard Estate

Court

Supreme Court of Nova Scotia

The February 13, 2020 will is invalid because suspicious circumstances existed and the Estate failed to prove on a balance of probabilities that George had testamentary capacity and knew and approved the will; evidence established significant cognitive decline around the date, unexplained inconsistent changes to the will, and that Dennis exerted overpowering influence resulting in a will reflecting Dennis's intent rather than George's.

Source excerpt

• Testamentary capacity
• Knowledge and approval
• Undue influence
• Suspicious circumstances
• Burden of proof
• Corroboration

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Kalanj v. Kalanj Estate

Court

Supreme Court of British Columbia

The court dismissed a summary trial application in an estate dispute over a deathbed transfer, finding unresolved conflicts on gift intent, capacity, undue influence, and unjust enrichment.

• Resulting trust
• Inter vivos gift
• Testamentary capacity
• Presumption of undue influence
• Summary trial suitability
• Hearsay admissibility

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