It is natural and expected that children want to assist their elderly or ill parents in any way that they can. In the context of estate planning, however, there is a risk that too much “assistance” may cross the line to create circumstances that are suspicious, thus leading to a finding that a will is invalid. This scenario was recently discussed in the case of Graham v. Graham 2019 ONSC 3632.
Some of the facts of this case were as follows:
- The deceased, Jackie, had four adult children. Her son Robert was married to Tammy;
- Jackie died of cancer on January 8, 2016, following a battle with cancer;
- Prior to her death, Jackie was hospitalized on two separate occasions due to severe pain. She was in the hospital from November 22, 2015, to December 7, 2015, and had to return to the hospital on December 22, 2015;
- Jackie’s son Robert and his wife Tammy made all arrangements with the lawyer regarding the will, even providing financial information;
- The will was signed on December 23, 2015. That meeting was the first time the lawyer met Jackie;
- Jackie was on heavy pain medication when she signed the will; and
- The will appointed Robert as Estate Trustee. A Power of Attorney was also signed which appointed Robert as Attorney for Property. On January 4, 2016, Robert used the Power of Attorney to transfer Jackie’s house to himself.
The court cited the decision of Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al. The court’s decision in Botnick expands on the reasons provided in the decision of Vout v. Hay, another case dealing with suspicious circumstances. The court in Botnick enumerates factors which may be considered to determine whether suspicious circumstances exist.
When considering whether there are suspicious circumstances, the court may consider:
1) The extent of physical and mental impairment of the testator around the time the will is signed;
2) Whether the will in question constitutes a significant change from the former will;
3) Whether the will in question generally seems to make testamentary sense;
4) The factual circumstances surrounding the execution of the will; and
5) Whether a beneficiary was instrumental in the preparation of the will.
After finding that suspicious circumstances did exist, the court went on to consider Jackie’s testamentary capacity. Referring to the test in Banks v. Goodfellow, the court found that Jackie did not have testamentary capacity.
The takeaway? Children should exercise caution when providing assistance to parents in the context of estate planning. Courts will examine these scenarios closely in order to be satisfied that the deceased wishes were his or her own and that there was an understanding of what they were doing throughout the process.
This blog post was written by Kate Wright, a member of the Family Law, Wills and Estates and Litigation teams. She can be reached at 613-369-0383 or at [email protected].
