Are you able to Contest the Validity of a Will?

TRI-CITY LEGAL is here to: (1) Protect the deceased’s interest; (2) Fight for your rights; and (3) Promote fairness in all respects.

TRI-CITY LEGAL regularly discusses Wills and Estate Litigation, often referred to as Wills’ Variation law. One facet of this law includes contesting whether a Will is valid or not. A number of factors come into play when a Will is contested. It is never easy, nor is it simple, to contest a Will’s validity. Typically, it involves obscure laws, legalese, and the testator’s (aka the will-maker’s) mental capacity.

At times, it may involve suspicious circumstances, which was discussed in one of our previous articles.

Click here &/or here if there are suspicious circumstances surrounding the creation of a loved one’s Will.

A recent BC Court of Appeal (BCCA) summarized the law on a Will’s validity. In Conner Estate v. Worthing, 2021 BCCA 231, the plaintiff brought forward an appeal to overrule a BC Supreme Court’s judgment dismissing his claim. In this case, Jean Ingrid Conner (the “Testator”) died of cancer in 2013. She was 63 years old. The appellant, Denis Worthing, was her spouse at the time she passed; he challenged her Will (the “Will”) on various grounds with respect to formality of execution, testamentary capacity, undue influence, and rectification. Following a summary trial, the trial judge concluded the Will was proven in solemn form, made a grant of probate to the respondent, Keith Woodburn Purvin‑Good (the “Executor”), and rectified the Will (aka held it as valid).

The appellant, appealed the judgment on the basis that the trial judge erred in finding the Will was proven in solemn form either by:

(1) concluding the two witnesses who initialed each page and printed their names at the appropriate location on the Will fulfilled the requirements of s. 4 of the Wills Act, R.S.B.C. 1996, c. 489; or

(2) determining that the appellant had not established suspicious circumstances in respect of Ms. Conner’s testamentary capacity.

At all times, the Testator had two adult children from a prior relationship, three adult grandchildren, and two minor great‑grandchildren; she also had a sister, two brothers, and several step‑children and step‑grandchildren. The Testator’s primary asset was her residence at 375 Woods Road in Kelowna, valued at approximately $592,000 (the “Kelowna Residence”). As Madam Justice Strombgerg-Stein, writing for the majority, stated:

 The Will had several errors on its face. The Will provided for the distribution of 150% of the sale proceeds from the Kelowna Residence, bequeathed the residue of Ms. Conner’s estate twice, and was missing words in one of the paragraphs.

The Will was witnessed by Brett Love and Debbie Cook, two employees of the funeral home where Ms. Conner was making her funeral arrangements. Each printed their name in the appropriate location but there was no signature line and neither signed the Will. They initialed each page of the Will, including the last page where they printed their names, addresses and telephone numbers.

The BCCA ultimately agreed that the Will was valid and proven in solemn form, dismissing the plaintiff’s appeal. In doing so, the Court stated that the intention of the two employees to witness the Will was sufficient to rectify the Will.

If you are seeking experienced, and expert lawyers to potentially contest the validity of a will - one produced under suspicious circumstances - contact TRI-CITY LEGAL asap. The sooner we represent you, the faster we may prevent the estate being distributed and leaving you with nothing.

With respect to the law, Madam Justice Strombgerg-Stein, writing for the majority, stated:

Formal Validity

[33]      In dispute is whether the printed names and initials of the two witnesses were facsimiles or marks that could suffice as a subscription within the meaning of s. 4 of the Wills Act. As I have indicated, the appellant conceded at the summary trial that the two witnesses printed their names on the Will and initialled each page of the Will.

[34]      Section 4 of the Wills Act provides:

Signatures required on formal will

4   Subject to section 5, a will is not valid unless

(a)   at its end it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction,

(b)   the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

(c)   2 or more of the attesting witnesses subscribe the will in the presence of the testator.

[35]      There is no real dispute in this case about the legal principles applicable to the formal validity of Wills under the Wills Act. The judge considered s. 4 and noted the differences in the language between s. 4(a) and s. 4(c). The former requires a signature by the testator, while the latter only requires that witnesses “subscribe” the Will….\

[36]      There is no dispute there is no doctrine of substantial compliance with respect to s. 4 of the Wills Act. The judge referred to Bolton, where the court held that a stamp did not suffice as a subscription under s. 4(c) of the Wills Act because the witness who affixed it did not intend for the stamp to be her mark in place of her normal signature. She had intended to sign the document as well, but had inadvertently failed to do so: at para. 10. The court opined that a stamp might suffice in some cases as long as the requisite intention was for the stamp to be accepted as a mark in place of a signature. The court also relied on the English decision of Hindmarsh. In that case, the House of Lords held that a valid subscription and attestation of a Will must include either the name of the witness “or some mark intended to represent it”: quoted in Bolton at para. 13.

…[38]      The judge also referred to Payne, which the appellant submits he was not entitled to do. Payne was an English decision with similar factual circumstances to this case. In Payne, the English Court of Appeal held that a Will was valid despite the fact the witnesses had only printed their names. The Court relied on the following facts in determining the Will had been validly subscribed…

…[42]      The judge concluded the witnesses knew they were there to witness the Testator’s signature on a Will and they intended to subscribe the Will when they handwrote their names on the document. They believed the Testator was competent to sign the Will and understood that the document she signed was a Will. They were both present with the Testator at the time that all three “signed” the Will. Both witnesses provided sworn evidence to this effect.

[43]      The judge also explained that, like in Payne, there was no obvious place on the Will for the witnesses to sign but that it was clear the witnesses intended to witness the Will.

[44]      The appellant has referred to this Court’s decision in Yen Estate v. Chan, 2013 BCCA 423, where this Court discussed the presumption of due execution. The trial judge never raised any presumption of due execution. The presumption relied on by the trial judge was that the testator had the necessary capacity and knew and approved of the contents of the Will.

Essential Validity

[45]      There is no dispute the judge correctly identified the legal test governing capacity to make a Will. The judge set out the oft‑quoted test for testamentary capacity from the English decision in Banks. To have testamentary capacity, the testator must be aware of her assets, appreciate who the beneficiaries are, and understand the effect of making a Will. The test does not require the testator to view the Will with the “eye of a lawyer.”

[46]      Furthermore, the trial judge correctly identified the burden of proof regarding capacity to make a Will. Capacity may be presumed where the Will was properly executed and read by the deceased, but that presumption may be rebutted by evidence of suspicious circumstances. If the presumption is rebutted, the burden reverts to the propounder of the Will to prove capacity on a balance of probabilities: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 at paras. 19–27.

…[48]      The only issue is whether the judge erred in finding the appellant had not shown suspicious circumstances capable of rebutting the presumption.

…[50]      The judge referred to many of the allegations of suspicious circumstances raised by the appellant and dispelled them. For instance, the judge found that there was nothing in the evidence to suggest the appellant’s cancer prognosis had impacted her capacity: Trial Reasons at para. 26. He also found the errors in the Will were a reflection on Mr. Purvin‑Good, but not on Ms. Conner, who had only a middle school education and was entitled to rely on her solicitor’s drafting skills: Trial Reasons at para. 23. Other suspicious circumstances raised by the appellant are inaccurate or irrelevant, including the suggestion that the Testator never read the Will and that the Testator had received prior drafts of the Will.

[51]      In rejecting the appellant’s arguments, the judge referred to a number of facts that supported the Testator’s capacity to make the Will. For instance, the judge noted that Mr. Purvin‑Good conducted a routine capacity test of the deceased when she met with him in his office; the Testator’s doctors, who met with her around this time, had no concerns about her capacity; and, notably, the deceased made a change to her life insurance policy designating Mr. Worthing as the beneficiary approximately one month after making the Will: Trial Reasons at paras. 24–25. Mr. Worthing, of course, does not raise any issues as to her capacity to do that.

…[53]      I see no error in the judge’s conclusions with respect to testamentary capacity.