Evidence & Will Challenges: What is enough?

Will challenge

In W.W. v Y.Y., the main issue before Justice Gilmore was whether there was enough evidence to support an inference that a will challenge should be heard.

What Happened?

W.W., the daughter of the Deceased, commenced a will challenge against the hand-written will (or holograph will). The Deceased was divorced from his first wife, with whom he had two children: W.W. and her 16-year old brother. The Deceased’s second wife, Y.Y., was named as the Estate Trustee and sole beneficiary to the Deceased’s estate in the holograph will (excluding W.W. and her brother).

W.W. challenged the validity of the holograph will on the grounds that the Deceased lacked the capacity to make a will at the time the will was made and on public policy grounds.

Y.Y. argued that there was insufficient evidence before the court to support an inference that W.W.’s claim should be heard and that her will challenged should be dismissed. W.W. argued that her father was suffering from brain cancer, which cause cognitive impairments, at the time he made the holograph will. She also argued that the wording of the will supported an inference that the Deceased was suffering from a psychiatric illness, which negated his testamentary capacity.

The Decision

Justice Gilmore found that in such cases, the court did not need to decide whether there are suspicious circumstances, but whether there is some evidence that would support the trial judge finding suspicious circumstances.

Some of the issues that W.W. raised to support her claims were:

  • The wording of the will called into question whether or not the Deceased was rational when the will was made. In the will, the Deceased referred to his children as follows:

“I have equally considered my two children and leave them absolutely nothing. Z.Z. is entirely without morality and who ‘did not know’ if she could tell the truth in a Court. She is less a person that her mother. G-d help anyone who ends up with her. Robert is the child of rape: of me, to extort to get impregnated is simply an act of rape. May a fire cleanse the world of this pollution and evil.”

  • Three months before making the will, the Deceased sent an email to his family lawyer in which he wrote one of the most important issues for him in that law suit was reuniting with his children. It is concerning that he would then write such a vitriolic will.
  • Several months before the will was made, the Deceased swore an affidavit in his family law dispute with W.W.’s mother, in which he swore that brain surgery left him dizzy, tired and nauseous. He deposed that he was unable to think logically at times and his memory was affected.
  • The Deceased was an experience lawyer, who knew many lawyers. It is unusual that he would write his own will.
  • A few months before the will was made, the Deceased’s neurologist suggested he undergo a neuropsychological assessment.
  • The offending portions of the will are disconcerting and may offend public policy. With respect to the references to W.W., she deposed that the portion of the will referring to her not telling the truth in court is inaccurate.  In fact, she refused to swear an affidavit which was critical of her mother despite being pressed by her father.  With respect to her brother, the fact of disinheriting him because he was the child of rape is beyond comprehension.  The deceased claimed that he was forced to impregnate his former wife or she would have left him. He therefore considered their son to be a child of rape. None of this is the son’s fault. Disinheriting him for such a reason is illogical at best.

Justice Gilmore rejected Y.Y.’s contention that there was insufficient evidence of suspicious circumstances. She found that any one of the issues raised by W.W. could lead to the trial judge finding suspicious circumstances, if the evidence available at trial was accepted by the trial judge.  She also stated that while Y.Y.’s arguments may form a reasonable defence to W.W.’s claims, the matter ought to move forward for further scrutiny by the court.

Justice Gilmore concluded that the evidence necessary to allow the will challenge to proceed does not need to be conclusive, but needs only to support an inference that the claims raise a genuine issue that should be heard by the court. W.W. met that threshold and was accordingly successful in her motion.

If you have suspicions that a will may not be valid but are worried that you don’t have enough evidence, you should speak with a lawyer to get advice about a possible will challenge. Please contact us to book an appointment.