In a recent Ontario Superior Court of Justice decision, Graham v. McNally Estate and Blais,[1] Justice Corthorn considers whether an evidentiary burden threshold has been met to successfully challenge the validity of an executed will.

Facts

Sheila Mary McNally (“Sheila”), passed away in October 2021. In her will, Sheila named her friend of 14 years, Katherine Blais (“Katherine”), the respondent in this action, as the primary estate trustee, attorney for property, attorney for personal care, and beneficiary along with Katherine’s spouse.

Patricia Graham (“Patricia”), sister of the late Sheila, and the applicant in this proceeding, challenged the validity of the will. To support her claim, Patricia relied on three main arguments; Sheila’s lack of testamentary capacity, the presence of undue influence, and suspicious circumstances surrounding the execution of the will.

In response, Katherine brought a motion for an order to dismiss the application claiming that Patricia had not met the evidentiary burden threshold that is required for the court to allow the proceeding to continue.

Lack of Testamentary Capacity

In November 2020 Sheila decided to update her will that was previously prepared in 2001. Patricia alleged that Sheila’s updated will was invalid because she lacked testamentary capacity due to mental illness, difficulty calculating numbers, and confusion.[2]

The court found that the evidence Patricia relied upon is nothing more than mere speculation and is not substantiated by any objective evidence, such as medical records.[3] Therefore, the evidence did not meet the applicable threshold to support Patricia’s claim that Sheila lacked testamentary capacity when she executed her will.

Undue Influence and Suspicious Circumstances

Patricia also claimed that Katherine unduly influenced Sheila and pointed to suspicious circumstances surrounding the will’s execution.

In order for a claim of undue influence to be successful, there must be coercion and the influence imposed on the testator must be “so overpowering that the document reflects the will of the influencer and not that of the deceased”.[4] The Superior Court of Justice concluded that Patricia was unsuccessful in meeting this threshold because she was unable to adduce and point to any evidence illustrating Katherine attempted to influence Sheila in any way with regard to the execution of her 2020 will.[5]

Patrica also asked the court to find the will invalid based on suspicious circumstances at the time of the execution of the will. However, Patricia was also unable to provide any evidence that would rebut the presumption that Sheila had knowledge of and approved the contents of the will. Sheila executed the will with legal assistance and there were no irregularities or any indication of suspicious circumstances surrounding the execution.[6]

Decision

The court concluded that Patricia did not meet the minimal evidentiary threshold required to challenge the will. The court deemed suspicions alone are insufficient to invalidate the will, and her objections were based on speculation rather than substantive evidence.[7] Therefore the court decided to grant the motion and dismiss the application in its entirety.[8]

Takeaway

Justice Corthorn’s decision and reasoning in Graham v. McNally Estate and Blais demonstrates the importance of providing a true evidentiary basis that is based on substantive, anecdotal proof, as opposed to mere speculation and opinion when attempting to contest the validity of a will.

If you have questions about challenging a will, please contact Esther Abecassis, wills and estates lawyer at Devry Smith Frank LLP at 416-446-3310 or esther.abecassis@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-written by summer law student Adriana Piccolo.

[1] 2024 ONSC 4006 (CanLII).

[2] Ibid at para 49.

[3] Ibid at para 58.

[4] Young v. Prychitko et al, 2022 ONSC 1502 (CanLII) at paras 20-21.

[5] Supra note 1 at para 75.

[6] Ibid at para 14.

[7] Ibid at para 32.

[8] Ibid at para 96.