Traditionally, one of the standard methods of attacking a Will is claiming suspicious circumstances. This has been expanded to be a basis for attacking Powers of Attorney. Will and Estate Lawyers can look to the 2021 decision of Madam Justice H J Williams in Rudin-Brown et al v. Brown. She applied the suspicious circumstances test attacking Powers of Attorney that on even a cursory examination could not pass the smell test. Estate Litigation Lawyers keep in mind the law of Suspicious Circumstances which we will now set out, and while we may refer to Wills it equally applies to Powers of Attorney and quite frankly other testamentary actions. An example of a testamentary action is naming a beneficiary of an insurance policy. The law of suspicious circumstances is defined as follows;
They may be raised by:
- Circumstances surrounding the preparation of the Will or Power of Attorney.
- Circumstances tending to call into question the capacity of the testator or the grantor of the Power of Attorney.
- Circumstances tending to show that the free will of the testator or grantor of the Power of Attorney was overborne by acts of coercion or fraud. The long-standing judicial source of this is the important Supreme Court of Canada 1995 decision in Vout v. Hay.
The importance of suspicious circumstances in any of these three categories effect the burden of proof with respect to knowledge and approval of the contents of the Will or the Power of Attorney. The burden with respect to testamentary capacity will be affected if the circumstances reflect on the mental capacity of the willmaker. Although the person trying to prove the Will has a legal burden with respect to its signing, knowledge and approval, the person trying to prove the Will is aided by a rebuttable presumption. However, if one can prove that the Will was signed properly and having been read over to or by the willmaker, who appeared to understand it, it will generally be presumed that the willmaker knew and approved of its contents and had the necessary testamentary capacity. In other words, if all you are trying to do is to have a Will approved by the court, the court begins with the presumption, but once you prove the most basic of formalities the court will assume that the willmaker knew what they were doing and met the test for capacity. However, if someone attacking a will can put forward suspicious circumstances, the evidentiary burden is shifted to the person trying to prove the Will. Justice Williams cited a number of cases that held the same test for a Will applied to a Power of Attorney. Wills and Probate Lawyers keep all of this front of mind when preparing a will for a client.
In determining whether there are suspicious circumstances, the court can look at many different things, but those include:
- What was the physical and mental impairment of the willmaker;
- Was the Will being questioned constitute a significant change from the former one;
- Does the Will in question generally seem to make testamentary sense;
- The factual circumstances surrounding the signing of the Will; and
- Was any beneficiary instrumental in the preparation of the Will.
Quite frankly it is simply a smell test. If it looks suspicious as it did in this particular case, then the court will be far more likely to jump in and set aside the Will or the Powers of Attorney. In this particular case, the 50-year-old son who had been living with his now 91 year old mother for decades, rent free had attempted to replace his mother’s longstanding Will with a new one in which he was named as the sole executor, beneficiary and to produce new Powers of Attorney. The adult son took his mother to two different law firms, neither of whom were willing to assist in the preparation of the new Will and Powers of Attorney as they felt it was obvious that the mother did not know what she was doing. So the son downloaded off the internet the appropriate forms and arranged for his mother to sign the documents in front of two friends at a local restaurant. Just about every alarm bell was triggered and the court had no hesitation in setting aside the new Wills and Powers of Attorney prepared clearly at the instigation of the adult son.
