Written by Barbara Kimmitt, Allyson Cairns-Walji and Mikayla Hill
A person who challenges the validity of a will has the burden of rebutting the presumption that a will is valid. In Logan Estate (Re), 2021 ABCA 6, the challenger was unable to rebut this presumption due to the strength of the drafting solicitor's notes. This case reaffirms the importance of specific protocols that a solicitor should follow when drafting and executing a will, and in particular emphasizes the importance of keeping good file notes.
The deceased, Velma Logan, made two prior wills that divided her estate equally amongst her six children. If a child predeceased her, that child's share would pass to his or her surviving children (Velma's grandchildren). Subsequently, one of Velma's children, Bonnie Balanko, died. Velma then changed her will leaving her estate to her five surviving children, rather than leaving Bonnie's share to her children.
According to the drafting solicitor's notes, Velma wanted to change her will because Bonnie's husband told Velma that he would make ample provision for his children, and he asked that his children not be included in her will.
One of Bonnie's children, Jody, challenged the will, alleging suspicious circumstances surrounding the will's preparation and execution by relying on her own uncorroborated evidence.
After the proponent of a will establishes due execution and knowledge and approval, a person who challenges the validity of a will bears the legal burden of proof to rebut the presumption of validity. Pursuant to section 11 of the Alberta Evidence Act, a challenger requires material evidence to help support his or her claim; uncorroborated evidence will not suffice. The court will pay careful attention to the material on the evidentiary record. Specifically, the drafting solicitor's notes play a large role in understanding the context of preparing and executing a will.
In Logan Estate (Re), the drafting solicitor took extensive, detailed notes setting out his conversations with Velma when he met with her to discuss her instructions, and again later when he met with her to review and sign the will. He made contemporaneous memoranda to his file outlining his open-ended questions that would establish testamentary capacity, and eliminate the possibility of undue influence. He specifically documented Velma's reasons for making a will, and why they departed from her prior wills. In particular, his notes confirmed that Velma believed Jody's father when he told her that he would provide for his own children, and she wished to abide by his request to exclude them from her will.
The Alberta Court of Appeal found unanimously in favour of the personal representative, and dismissed Jody's appeal. In so doing, the Court relied heavily on the solicitor's notes and supporting evidence. It concluded that Velma was an active participant in creating the will and there were no concerns relating to her mental capacity. Further, the solicitor provided "careful, skillful, and independent advice."
Logan Estate (Re) is a helpful reminder for solicitors engaged in the preparation of wills and estate planning. In particular, the drafting solicitor should follow these protocols:
- when the client's instructions result in a significant change from an existing will, such as the removal of a beneficiary, the solicitor should canvass the client's reasons for those instructions;
- the solicitor should take careful notes of the client's instructions;
- the solicitor should create contemporaneous memoranda to file documenting the questions that were asked, and the client's responses; and,
- the notes and memoranda should include the solicitor's observations about the client's testamentary capacity, and any signs that the client has been influenced in providing their instructions.
If you have any questions about wills, please contact a member of the Bennett Jones Wills, Estates & Trusts group.