The death of a loved one is a difficult ordeal. In some cases, on top of dealing with their grief, family members are forced to contest a legacy or the deceased’s will in court. This decision should not be taken lightly, as it can put family relationships at risk.
Contesting a will: on what grounds?
Various grounds can be raised to contest a legacy or a will: the will was forged, it is unclear, it does not meet the legal requirements, the legacy was made to a person unworthy of inheriting, etc.
However, two grounds of contestation account for a large number of cases before the courts:
- Challenging the capacity of the deceased at the time they signed their will while alive;
- Situations of undue influence over the deceased’s will (captation: wrongful manoeuvres by a third party to push the deceased to grant them a benefit) at the time the will was made.
Contesting a will on the grounds of the deceased’s incapacity
What is it?
The Civil Code of Québec sets out the fundamental rule that every person is capable of exercising their rights and of signing their will. This means that every person has sufficient faculties and is able to act fully and effectively when it comes time to perform a juridical act.
This capacity can, in a sense, be presumed. Incapacity is therefore the exception, and it is up to the person alleging it to prove it.
How do you prove incapacity?
The evidence needed to show that a person lacked capacity when signing their will does not have to convince a judge of that incapacity beyond any doubt.
Instead, the evidence must show, on a balance of probabilities (50% + 1), that incapacity is more likely than capacity.
That said, the case law adds an important nuance to the proof of incapacity. The courts today tend to recognize that when there is credible prima facie evidence (meaning “evidence at first sight”) of incapacity, the burden of proof shifts to the person who argues that the individual had capacity when signing the will.
Did the deceased have sufficient intellectual faculties to understand the scope of the testamentary provisions in question when they signed the will?
This is the central question a court will have to analyze to assess a person’s degree of capacity when signing their will.
Naturally, if a legacy or a will is challenged in court, the deceased will not be there to testify about their capacity and their mental state at the time they made it.
Generally, the evidence presented in this type of case is based on testimony from people close to the deceased, the witnesses to the signing of the will and medical experts who followed the deceased’s condition before death.
Rebutting evidence of incapacity
To contradict the person alleging the testator’s incapacity, the person who argues testamentary capacity and wants the legacy or will upheld can show, using the same types of evidence as their opponent, that the will was signed while the testator had full capacity.
When the court is leaning toward a finding of some degree of incapacity, they can also try to show that the testator recorded their last wishes during a lucid interval.
Beyond the testimony in evidence, the person rebutting incapacity can show that the testamentary provisions are reasonable, in support of the argument that the testator had capacity.
For example, it could be useful to show the court that the testamentary provisions are consistent because they benefit people who were close to the deceased. Or, conversely, that the position of the person alleging incapacity leads to an inconsistent result if, for example, the will has the effect of enriching a third party with whom the testator had little or no relationship.
What if the will was signed before a notary?
It is not the notary’s role to analyze the client’s capacity when the client signs their will, since notaries are not specialists in this area.
However, to avoid professional liability, the notary must be careful and explore the client’s mental capacity, at least briefly, by talking with the client and asking questions.
If the client shows signs of incapacity, a prudent and diligent notary could be required to stop the signing of the will and ask for a medical certificate.
Contesting a will on the grounds of undue influence
It is possible to contest a legacy or a will when undue influence was exerted over the testator’s will (captation).
What is undue influence (captation)?
As the courts have defined it many times, captation consists in misleading or influencing a person through unlawful, or even fraudulent, manoeuvres to obtain a testamentary benefit from that person. For there to be captation, there must be manipulation and/or lies.
When there is captation, the will of the person making the will has been forced, and the consent to the will reflects the wishes of the person behind the unlawful manoeuvres more than those of the testator.
The evidence required
A person alleging undue influence must prove it.
To succeed and have a legacy or will annulled, they must show the unlawful manoeuvres and also show that, without these manoeuvres, the testator would have made different testamentary provisions.
The person alleging undue influence can also show the court that the person behind the manoeuvres gains an undue benefit to the detriment of other family members. Although this evidence is not mandatory, it could strongly influence the court toward a finding of undue influence.
Proving undue influence is generally difficult, since the main witness to the circumstances surrounding the making of the will has died. As a result, the courts most often find undue influence on the basis of presumptions, supported by testimony from family members or by certain writings.
Common indicators
When the person challenging the legacy or will presents their evidence, certain indicators can be highlighted to support the argument of undue influence.
For example: a testamentary provision that is surprising, unusual or contrary to what the deceased had said; a controlling relationship by a person who benefits from the will; a vulnerable physical or mental state; the fact that the will gives a person an unjustified or illogical advantage; etc.
Note that, most of the time, these indicators must be combined to provide sufficient evidence to justify annulling a legacy or an entire will. The mere existence of a legacy that may seem odd or contrary to what the deceased said while alive is not enough to have that legacy or the will annulled.
However, if a will is amended in a way that is diametrically opposed to its original provisions and, in addition, there are serious doubts about the deceased’s psychological health at the time of the amendment, these combined elements could be sufficient evidence to annul the contested legacy or the will, as the case may be.
But be careful!
Undue influence is not automatic. It is not necessarily unlawful to win the favour of a loved one if the means used are lawful and do not involve manoeuvres likely to deceive or defraud.
The Supreme Court of Canada qualified the concept of undue influence in Stoneham and Tewkesbury v. Ouellet, [1979] 2 S.C.R. 172, from which we reproduce a relevant passage:
Self-interested attentions toward the testator (such as expressions of attachment, flattery, care provided or services rendered with exaggerated eagerness that could have concealed feigned affection) and mere suggestions or advice to the testator are not in themselves acts of suggestion and captation that lead to the nullity of the will. But the manoeuvres must stop there, and if they become fraudulent in nature, they will be a cause of nullity of the will. Examples include: inciting hatred against the presumptive heirs, rekindling an old aversion, acting so as to gain absolute control over the testator’s will, such as intercepting their correspondence, keeping family and friends away from a sick person confined to the home, interfering in their affairs, refusing to send for a notary to prepare a codicil or a new will; in a word, deceit or coercion in all their forms. The same would apply to a false representation to the testator, by the person who wants to benefit, that they are poor and need help, while those in whose favour the testator would normally dispose of their property are rich and well provided for. The words “suggestion and captation” illustrate quite well what is involved: someone takes hold of the testator’s will and suggests how they should make their will. But what is to be considered suggestion and captation may vary from one case to another, depending on the particular circumstances of the case. The testator’s age, state of health and social condition may have played a role in the degree of resistance they could offer to the manoeuvres to which they were subjected. (our translation)
Some examples of unlawful manoeuvres
In cases contesting a will on the grounds of undue influence, a common example of an unlawful manoeuvre is a person who sets up a scheme to isolate a loved one from their family and friends.
Other very serious cases involve family members who use physical or verbal violence to obtain a testamentary benefit.
It could also be a family member who gradually makes the vulnerable person financially dependent, for example by pressuring them into granting a power of attorney to manage the testator’s finances and property.
Legacies to staff of a health care institution
What happens when the deceased leaves property to a member of the staff of a health and social services institution?
This legacy may well reflect the deceased’s wishes. However, the risk of undue influence can be high in such circumstances, since a person receiving care in such an institution is generally in a very vulnerable state.
To protect the users of this type of institution, the law provides that there is automatically undue influence when a legacy is made to a member of the institution’s staff at a time when the testator is being treated there (article 761 of the Civil Code of Québec and section 276 of the Act respecting health services and social services).
Contact us
Are you involved in a dispute over a will? A consultation with an estate law lawyer will help you understand your rights and explore the legal options available to you. Contact our Québec City or Lévis office today.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
