Dementia Raises Suspicion that Late-in-Life Will Not Valid

A late-in-life Will that disinherits certain children. Dementia and cognitive decline of the will-maker. Secrecy surrounding preparation of the new will. All of this led to a dispute over the estate of an elderly BC woman in Re Singh Estate, 2019 BCSC 272. In this case, the will-maker’s eight children and most of their spouses became embroiled in litigation. The BC Court concluded that comments regarding the deceased’s capacity in her medical records and her abrupt decision to disinherit two of her sons based on events that would have occurred years prior suggested, on a balance of probabilities, suspicious circumstances. The woman lacked testamentary capacity to execute the new will and it was declared of no force and effect.

Parents live with eldest son for 30+ years

Mrs. Singh (“the deceased”) and her husband, Raghu, lived with their eldest son, Uma, from the time they immigrated from Fiji to Vancouver, BC in 1979. Uma and his wife bought a property in Vancouver with Uma’s parents, holding title as joint tenants. After Raghu died in 2005, his share devolved to the three remaining joint tenants by right of survivorship. In 2009, Mrs. Singh severed the joint tenancy ownership of the property. Thereafter each held a one-third interest as a tenant-in-common.

2013 Will

Mrs. Singh’s 2013 Will named her son Uma and her daughter-in-law Sharda as executors. The 2013 Will provided that her interest in the property be left to Uma, that all loans provided to two of her other sons (Pushp and Ramesh) be forgiven, and that her personal belongings and residue of her estate be divided equally amongst all eight children. The 2013 Will explained that she wanted her interest in the property to go to Uma because he contributed most of the funds to purchase the property and paid household expenses, and because she was grateful for his time and support over the years.

Notice of dispute filed

Mrs. Singh died on April 28, 2016, at the age of 92. After her death, one of her eight children, Kushwaha, opposed the grant of probate with respect to the 2013 Will and filed a notice of dispute. Kushwaha provided a copy of a will executed by the deceased on February 22, 2016 (“2016 Will”) naming him as executor of her estate. The terms of the 2016 Will disinherited two of the deceased’s sons (Uma and Sneh) on the basis that they received “their share” from Raghu’s estate. The 2016 Will made no mention of forgiving debts.

Deceased’s mental health issues

In or around 2014, the deceased began to experience health issues. She had delusions and paranoia, was forgetful, and confused. She fell and hit her head in January 2016 and was hospitalized. After the hospitalization, she briefly went to live with one of her other daughters, and then with one of her other sons. During that time—and unbeknownst to Uma—the deceased executed the 2016 Will after being taken to a Hindi-speaking lawyer by Kushwaha.  The deceased was again hospitalized in March 2016 and died in April 2016. There is a significant dispute over whether the deceased had testamentary capacity in executing the 2016 Will. The BC Court was called upon to answer whether the 2016 Will was valid and enforceable as the last will of the deceased.

How BC Courts analyze the validity of a will

The “propounder” of a will (that is, the one who seeks to convince the court of a will’s validity) must prove: formal validity of the will, that the will-maker had knowledge and approval of the will, and that the will-maker had testamentary capacity. Formal validity requires that the will must be in writing, signed at the end by the will-maker in the presence of two or more witnesses, and signed by the witnesses in the presence of the will-maker: WESA, s. 37(1).

If the will satisfies these statutory formalities, the propounder can take advantage of a rebuttable presumption of testamentary capacity. To rebut that presumption, the burden is on the “contestor” of the will to prove there were suspicious circumstances surrounding its creation. To rebut the presumption of testamentary capacity by establishing suspicious circumstances, the contestor of the will must raise: (1) suspicious circumstances surrounding the preparation of the will; (2) circumstances tending to call into question the capacity of the will-maker; or (3) circumstances tending to show that the free will of the will-maker was overborne by acts of coercion or fraud.

If the Court is satisfied that one or more of these issues exist, the burden shifts back to the propounder to prove the will-maker knew and approved of the contents of the will and that he or she had testamentary capacity on the balance of probabilities. To establish testamentary capacity, the propounder must satisfy the Court that the will-maker was of sound mind, memory and understanding. Assessing whether a will-maker possesses testamentary capacity is a question of fact and is a “highly individualized inquiry.” The will-maker must have had the mental capacity to “appreciate and comprehend the nature and effect of the essential elements of the testamentary act”, including an appreciation of the claims of persons who are the “natural objects” of his or her estate,” as well as an appreciation of the extent of the property to be disposed.

Court finds that the 2016 Will is not valid

The analysis began with the burden on Kushwaha, as propounder of the 2016 Will. The deceased signed the 2016 Will in the presence of a lawyer and a witness after it was reviewed with her. Because the 2016 Will satisfied the formalities set out in s. 37(1) of WESA, the presumption arose in Kushwaha’s favour that the deceased knew and approved of the Will’s contents and to have had testamentary capacity when it was executed.

The burden shifted to Uma to rebut the presumption by providing evidence of suspicious circumstances. The Court was provided with medical records containing statements made by medical professionals who treated the deceased around the time she executed the 2016 Will. The deceased was noted to be experiencing significant cognitive impairment (delirium, paranoia, and dementia). The direct observations in the records were admissible and relevant to the issue of suspicious circumstances regarding the deceased’s testamentary capacity and her knowledge and approval of the contents of the 2016 Will. Additional factors relevant to this analysis were the deceased’s decision to abruptly depart from her 2013 Will by disinheriting two of her children on the basis that they had received “their share” under their father’s will many years prior, and her place of residence in the last few months of her life after living with Uma and his wife for the previous 37 years.

Given these suspicious circumstances, the burden shifted to Kushwaha to prove the validity of the 2016 Will. The evidence was lacking in this regard. The lawyer who prepared the 2016 Will provided an affidavit deposing that he was satisfied the deceased had sufficient capacity, but there were no notes in his file about his assessment of the deceased’s capacity. There was no evidence that the lawyer asked specific questions to determine the capacity of the 92-year-old client before him such as: whether she had a prior will; the details of Raghu’s estate; what exactly Uma and Sneh received from his estate; why she made the decision to disinherit them years after her husband’s death; or questions about the nature of her and Uma’s ownership of the property.

Also problematic was that the 2016 Will did not include any detail as to the particulars of the deceased’s property. The Court was not satisfied that the deceased understood what she owned at the relevant time, or that she understood the testamentary provisions she was making and the general effect the 2016 Will would have upon her death. There was no evidence that she understood that disinheriting Uma could have a significant impact on Uma and his living situation. For example, if the 2016 Will was valid, the property might have to be sold so that the deceased’s one-third interest could be distributed amongst the six beneficiaries.

The Court concluded that the 2016 Will was of no force and effect because the deceased lacked the requisite testamentary capacity when she executed it. The Court ordered that the notice of dispute filed by Kushwaha be removed and that the 2013 Will was a valid and subsisting will proven in solemn form.

Bottom line on challenged to the validity of a will

If you are involved in a dispute concerning a family member’s estate, you will want to ensure that you leverage every possible advantage in your favour. That includes using the legal presumptions discussed above to your advantage. Estate litigation can be an uphill battle and extremely complex. If you have concerns about suspicious circumstances surrounding a family member’s will, get in touch with our estate litigation lawyers.