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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Dhillon Estate (Re)

Court

Supreme Court of British Columbia

The Opposing Children pursued serious, unsubstantiated allegations of undue influence, lack of testamentary capacity and elder abuse despite early disclosure of the solicitor's detailed file that dispelled those suspicions; their conduct was unreasonable and reprehensible, so costs follow the event and special costs are warranted to punish and deter that conduct. The Beneficiary Children and the Administrator recover their costs as special costs from the Opposing Children, to be assessed.

Source excerpt

• Probate
• Will validity
• Testamentary capacity
• Undue influence
• Special costs
• Costs follow the event

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Schickedanz v. Schickedanz

Court

Court of Appeal for Ontario

The Ontario Court of Appeal upheld a ruling invalidating a handwritten codicil that left a $20 million home farm to one child, finding suspicious circumstances and no proven capacity or approval.

• Holograph will
• Testamentary capacity
• Knowledge and approval requirement
• Suspicious circumstances
• Onus of proof
• Costs

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Opsal Estate (Re)

Court

Supreme Court of British Columbia

The court refused to convert the petition to a trial or adjourn for expanded discovery because the respondents failed to show a good reason, unjustified delay and a fishing expedition; the proponent established formal execution and presented overwhelming independent evidence (medical and witnessing attestation) that the deceased had testamentary capacity and knew and approved the 2021 will; suspicious circumstances and undue influence were not proven; counsel's file remained privileged because counsel was retained after execution for litigation, not for estate planning; therefore the 2021 wil…

Source excerpt

• Testamentary capacity
• Knowledge and approval of will
• Undue influence
• Conversion of petition to trial/hybrid trial
• Adjournment
• Production of legal files

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Anroop v. Naqvi

Court

Court of Appeal for Ontario

The Court of Appeal for Ontario allowed the appeal, held that the Fourth Will of Reka Anroop was invalid, and set aside the costs order below.

• Testamentary capacity
• Undue influence
• Forgery
• Conflict of interest
• Suspicious circumstances
• Costs allocation

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Jugovits Estate (Re)

Court

Supreme Court of British Columbia

The court denied the alleged revocation: the son failed to prove on a balance of probabilities that the deceased destroyed the original will and, alternatively, failed to prove the deceased had testamentary capacity to revoke it; therefore the certified copy of the 26 May 2021 will is admitted to probate.

Source excerpt

• Revocation of will
• Testamentary capacity
• Presumption of revocation
• Probate of copy
• Burden of proof
• Summary procedure

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Kroeger v. Bush Estate

Court

British Columbia Court of Appeal

The chambers judge erred by failing to treat the instrumental involvement of an interested power of attorney who drafted changes that greatly benefited her and her siblings as suspicious circumstances that rebutted the presumption of validity; once rebutted the propounder failed to prove on the balance of probabilities that the testator knew and approved of the 2018 will because there was no evidence the testator appreciated the approximate value of the estate or the magnitude of the residuary gift, therefore the 2018 will was not proved in solemn form and the estate is to be distributed unde…

Source excerpt

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

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Lavictoire v. Schwarz

Court

Supreme Court of British Columbia

The court held that Zofia Rymgaillo lacked testamentary capacity when she made her 2012 will and declared the will invalid, denying proof in solemn form.

• Testamentary capacity
• Suspicious circumstances
• Burden of proof in probate
• Admissibility of expert evidence
• Hearsay - principled exception
• Role of drafting solicitor

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Shieh v. Shieh Estate

Court

Supreme Court of British Columbia

The court dismissed a s. 58 WESA application, finding the disputed document did not prove Catherine Shieh’s fixed testamentary intention or authenticity.

• S.58 wesa curative order
• Testamentary intention
• Authenticity of testamentary document
• Testamentary capacity
• Handwriting expert evidence
• Codicil

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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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