Lawyers' Opinions Matter When a Will Is Prepared

Written by Barbara J. Stratton, Q.C., Sarah J. Huot and Emily M. Hole

When a Will is challenged on the basis of allegations of undue influence, incapacity, or suspicious circumstances, the court will look at various factors to decide if the Will should be followed or declared invalid. These factors include:

1. Medical evidence of the deceased’s healthcare providers;
2. Fact evidence of those who knew the deceased. However, the court will be mindful of self-serving statements of those with an interest in the Will and may place less weight on those statements unless they are corroborated or confirmed by other evidence; and
3. A drafting lawyer’s opinion on capacity and an opinion on whether the deceased’s wishes were his or her own (and not someone else’s). 

Even if a person’s capacity has diminished by reason of age, a court may still confirm the validity of the Will if it is challenged. If this were not the case, the Wills of many elderly people would not be considered valid by reason of the physical and psychological effects of aging. As the Court of Appeal stated in a recent decision, "[t]he suspicion necessary to force a trial putting an entire Will into question requires more than the belief of the disappointed potential beneficiaries" (Beimler v Kendall, 2017 ABCA 117, citing Keller v Luzzi Estate, 2010 ABCA 127 at para 32).