Alberta Court of Appeal rejects 'suspicious circumstances' in a will validity challenge

The evidence did not overcome the presumption of the will's validity: court

Alberta Court of Appeal rejects 'suspicious circumstances' in a will validity challenge

The Alberta Court of Appeal recently decided against holding a trial to address the validity of a contested will, finding that the evidence failed to overcome the presumption of the will’s validity.

The issue in McKay v Olsen, 2024 ABCA 90 involved a dispute between siblings over the last will of their deceased mother, which left the entirety of her estate to one of the siblings, the appellant, departing from a previous will that divided the estate equally between them.

The contested will, created on November 26, 2015, favoured the appellant by bequeathing the entire residue of the estate, primarily comprising the deceased’s residence, a departure from the 2012 will. The respondent, the appellant's sibling, challenged the will, citing concerns over undue influence and the testatrix's testamentary capacity, leading to the initial decision for a trial.

The respondent's challenge was grounded in the Surrogate Rules, which allow for a trial if "suspicious circumstances" are demonstrated. These circumstances were identified as potential issues of diminished mental capacity, beneficiary involvement in the will's preparation, drastic changes from previous wills, and questionable testamentary logic. Evidence presented included affidavits, medical records indicating mild dementia, and assertions of the deceased's inconsistent capacity to make significant legal decisions in her final 18 months.

The chambers judge concluded that while it was a “close call”, there were indicia of potential issues that could not be resolved on the record before him. As a result, he directed the parties to a summary trial.

On appeal, the appellant contested the admissibility of certain evidence and argued that the aggregate evidence did not sufficiently prove the existence of suspicious circumstances to warrant a trial. The appeal court noted that the deceased had expressed intentions to favour the appellant in her will as early as 2012, citing the appellant's residence with her and the appellant's financial dependence, among other reasons.

Ultimately, the Court of Appeal agreed with the appellant, highlighting procedural errors in admitting unsworn expert opinions and emphasizing the robust protections against undue influence and capacity issues provided by the law and the standards for formal proof of a will under the Surrogate Rules.

The appellate court also addressed the balance between the need for a trial and the appropriateness of summary judgments, underlining the shift towards more efficient and less costly dispute resolution methods. It concluded that the evidence did not overcome the presumption of the will's validity, nor did it justify the delay and expense of a trial. Ultimately, the Court of Appeal allowed the appeal, setting aside the order for a trial and discharging the respondent’s caveat against the will.

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