The traditional grounds of attack against a Will are:

1. The Willmaker aka Testator lacked testamentary capacity, in other words, was not mentally well enough to make a will

2. Undue influence, in other words, the Willmaker was coerced, in essence, forced into making a Will against their will

3. A lack of knowledge and approval of the Will, in other words, the Willmaker signed a document not really appreciating what it was; and

4. Failure to comply with the formal requirements under the Succession Law Reform Act.   Such as the Willmaker forgot to sign it.

However, there are other far more exotic and less frequently used grounds which we will now discuss.

MISTAKE by the Willmaker as to the meaning of the Will

One such ground is a mistake on the part of the Willmaker. This is very different from an error made by the lawyer who drafted the Will on behalf of the testator. One should examine our blog article on Rectification. In this instance, we are talking of where the Willmaker simply did not appreciate or understand the legal impact of what they were signing, even after it had been explained to them or had an opportunity to have that explanation given to them.  Linking up with one of the four traditional grounds outlined above, if one who objects to the Will can prove that the testator did not understand the contents of the Will, then the Will’s validity indeed can be challenged successfully based upon a lack of knowledge and approval of the Will. However, if after explanation is received and you misunderstood, you may be out of luck.  If one looks at the 2010 decision of Re the Estate of Blanca Esther Robinson, it was alleged that the now-deceased testator did not appreciate the meaning of relatively clear wording. We do not need to go through the specific facts of that case, but the court failed to set aside the Will.  The court held that it would not fix a Will correcting a testator’s mistaken belief about the legal effect of a clause, which the testator had reviewed and approved.

Public Policy

The clearest example of that is a Will of which contains provisions that are clearly driven by motives that are contrary to public policy. The most obvious example is a provision in a Will that is based on racial discrimination. The discrimination must be patently obvious from the Will itself rather than from evidence given outside of the four corners of the Will. There is a prominent Ontario Court of Appeal decision in Spence v BMO Trustco in which a Will simply disinherited one child. The recipient child objected saying that the reason for it was that she had married a person of a different race, which was something that the testator/Willmaker was opposed to. While the trial judge agreed with the objecting child (see our blog article titled Wills and Estates – Cancelling a Will for Racism), the Court of Appeal said no, there was nothing on the face of the Will that is racially prejudicial in itself and the court will not admit extrinsic evidence since the will was clear, unambiguous and unequivocal.  I would ask our readers that to look at my recent blog article on the Armchair Rule on Will interpretation. There is some wiggle room here in which it is not necessarily a precondition to examining extrinsic factors when the provisions of the Will are clear and unambiguous. However, judge-made law frequently differs as it reflects the human origin of its source.

Mutual Wills  – Constructive Trust

I would recommend our blog article on Mutual Wills.  This is a further elaboration of this concept. A Mutual Will is different from a Mirror Will. It is extremely common for married couples to basically make Mirror Image Wills of the others. What differentiates a Mirrored Will from a Mutual Will is that the latter represents a deal that cannot be broken. An example of a Mutual Will is a spouse leaving everything to the other and upon the death of the last spouse, then all to their children. However, a Mutual Will unlike a Mirror Will must reflect that there was a binding agreement between the parties that upon the death of one, they will not change after the first spouse’s death the terms of their Will. If they do so, then their assets are subject to attack by the children who have lost out under a revised Will and they may seek a constructive trust.

As we explained in our Mutual Will blog, it is important for a finding of binding Mutual Wills that there must be clear evidence of such an agreement and there is no better place for that evidence to be put forward then in the Mutual Wills themselves. If there is indeed a non-compliance with a Mutual Wills agreement, that on a tactical basis is not a ground upon which the validity of the Will should be challenged, but rather the appropriate remedy would be to start a lawsuit against the estate for breaching the Mutual Wills agreement.

Breaking other contracts or obligations under them

It is not uncommon in a separation agreement to agree that a certain asset will be transferred onto the parties’ children upon death or to the former spouse. Alternatively, a testator/Willmaker may have entered into a shareholders agreement. If the will is contrary to the provisions of an outside contract, there will be trouble. However, like the Mutual Wills discussion above, this is not a reason for a Will challenge but rather grounds for a lawsuit against an estate to enforce the contract.

Finding that a person has the mental capacity to marry is curiously a low test to meet. It is less than testamentary capacity, in other words having the mental capacity to make a Will even though it has far-flung implications. I recommend our article of March 2014 titled Predatory Marriage Elder Abuse and the Court’s Power to Fix Wrongs as a starting point.

In 2021, a disappointed child of an earlier marriage attempted to cancel his father’s subsequent marriage. In the case of Tanti v. Tanti, a decision confirmed by the Ontario Court of Appeal featured a fact situation in which the father, an elderly gentleman with worsening dementia married a much younger woman. The son from an earlier marriage attempted to be appointed guardian of his father’s property and his recent wife also made a similar application. The turning point was whether or not the marriage was a valid one.

The court in the end held that the elderly fellow indeed understood both the nature of the marriage and the duties and responsibilities that flowed from it.  The court held specifically that this was not a predatory marriage. The court held that the test for capacity to marry is a simple one. The parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it. Understanding the content of the marriage contract (generally not an actual written contract but the upspoken promises exchanged between husband and wife) does not require a high degree of intelligence.  The parties must agree to live together and love one another to the exclusion of all others. A person may be capable of marrying despite having been declared incompetent or having had a guardian for a person or property. In this particular case, there are a number of factors that pointed to the fellow having the capacity, and the marriage was held to be valid. The parties had been together for a number of years prior to marriage and the husband was not diagnosed with dementia until after the wedding. The husband also took a number of steps of his own volition that were consistent with appreciating the consequences of the marriage. The disgruntled son attempted to argue that the degree of mental capacity needed for a valid marriage was similar to granting a power of attorney over the property. The Court of Appeal’s answer was sorry.

The reason that this has been extremely important to date is that a marriage cancels all prior Wills. This law is about to change effective January 1, 2022, whereby there is no such automatic cancellation of earlier Wills and is a welcome step in remedying real predatory marriages.

How does a court interpret a Will when the meaning of the Will is not particularly clear or makes no sense?

This issue has been debated by courts for a lengthy period of time.

In the recent 2021 Superior Court decision of Justice David Broad in Fletcher v. VanSickle, the guiding principles of the law were discussed at length. Picking up on the 2021 Ontario Court of Appeal decision in Ross v. Canada Trust Company, the court held “a court’s task can be stated simply. It is to determine the testator’s – the willmaker – actual or subjective intention as to how he or she intended to dispose of his or her property.” The general concept has been described as the armchair rule. “Placing the court in the armchair of the willmaker as they were preparing their Will. All of the circumstances, family relationships, assets of the willmaker at the time of making the will are taken into account in a lens through which to read the words contained within the Will. The Judge is to look at the entire Will and after full consideration of all the provisions and language used, try to find what intention was in the mind of the willmaker. The court should then strive to give effect to it and to do so unless there was some rule or principle of law that prohibits it from doing so.” An example of a prohibited clause would be one that was obviously racially prejudiced. The court is to assume the same knowledge the willmaker had at the time of making the Will in regard to the nature and extent of his or her assets, the makeup of his or her family and his or her relationship to his family members. Generally speaking, this armchair rule applies when the willmakers intention cannot be ascertained from the plain meaning of the Will’s language.

There is another interesting aspect to this which seems counterintuitive. At times, the court may make a an interpretation of a Will using the armchair rule even if the words in the Will themselves do not appear to be ambiguous or unclear. One can look at the Manitoba Court of Appeal 2015 decision in Zindler, which cited Feeney’s Canadian Law of Wills. It concludes that the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words. This is true even if the words themselves do not appear to be ambiguous or unclear.

The starting point is attempting to figure out what the willmakers’ intention was from the plain meaning of the Wills’ language and only when the judge cannot determine that intention, the judge is supposed to take a step back and consider the bigger picture of the surrounding circumstances applying the armchair rule.

It is not unusual for aggrieved parties attempting to attack a Will, to use evidence that arises after the date of the making of the Will to show how it was either completely unfair or unreasonable and therefore clearly could not have been the intention of the willmaker. However, that is contrary to the armchair rule. While a Will speaks as of the date of its death, for the purposes of interpretation, it is as of the date that the Will was drafted. What did the willmaker know at that time? If circumstances changed after that date, it was the responsibility of the willmaker to create a new Will.

Tort law aka civil claims for damages is not a fixed class. An example of a Tort that we are all familiar with is negligence such as when a person is not paying attention and causes you harm in a motor vehicle accident. However, as society and technology moves along Tort law, which is generally judge-made law, evolves and in rare circumstances creates a new tort or cause of action to sue someone.

In the Alberta Court of Queen’s Bench decision, in ES v. Shillington released on September 16, 2021 the court created a new tort called public disclosure of private facts. The concept has been driven by the 21st century phenomenon of revenge porn postings on the internet. In this particular case, a woman’s long-standing boyfriend contrary to her specific instructions released intimate photographs that she had sent on to her boyfriend as a private gift. Without her permission and contrary to her specific instructions, he over a number of years posted these photographs on various social media outlets, which eventually found their way onto the internet. His behavior towards her included other horrible misdeeds such as assault, battery, sexual assault and intentional infliction of mental distress. The judge held, for a case like this to be successful, there needs to be at least four factors. One, the defendant publicized an aspect of the plaintiff’s private life. Two, the plaintiff did not consent to the publication. Three, the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff. Four, the publication was not a legitimate concern to the public.

The defendant, a member of the Canadian Armed Forces, never defended the action and the court penalized him significantly. The Court ordered general damages of $80,000, aggravated damages of $25,000 and punitive damages of a further $50,000. Further, costs were awarded against him. Obviously, this is behaviour that could not be taken lightly and now there is an additional remedy. This Alberta case follows on the heels of a 2016 decision, Jane Doe 464533 v. Capital N. D. , in which the 18 year old defendant shared a sexually explicit video of he and his one-time girlfriend online. In that particular case, damages of over $100,000 were assessed against the defendant. This in turn is also based upon an earlier decision Jones v. Tsige which granted $10,000 in damages after a bank employee illicitly checked out confidential information about her husband’s former wife. The court set no cap on the amount of damages, leaving it for each individual court to make its own assessment. This is a dignity based tort and an example of the court expanding its abilities even in the absence of any legislation to assist.

These claims for damages can even be part of estate litigation, when a victim pursues a claim against a deceased, but it must be done in a timely fashion. This all sounds complicated and it is, but it shows one of the strengths of the Common Law system we enjoy, namely it is not static and Judges as well as Legislators can create new laws.