All About Estates

Deceased’s Will So Hateful it is Suspicious

When WW finally received a copy of her father’s will, after more than a year of chasing her father’s second wife to produce it, she read these words:

I have equally considered my two children and leave them absolutely nothing. [WW] is entirely without morality and who ‘did not know’ if she could tell the truth in a Court. She is less a person than her mother. G-d help anyone who ends up with her. Robert [the deceased’s son] is the child of rape: of me, to extort to get impregnated is simply an act of rape. May a fire cleanse the world of this pollution and evil.

The deceased, a lawyer, allegedly wrote the impugned holographic will more than a year after he was diagnosed with an aggressive form of brain cancer. In it, he left his entire estate to his second wife, YY, to the exclusion of his children from his first marriage, WW and a minor son. The deceased and his first wife had been engaged in a bitter decade-long divorce proceeding that was resolved only a few years before his death. The deceased was largely estranged from the children of his first marriage when he died.

WW challenged her father’s will and brought a motion for directions seeking the appointment of an estate trustee during litigation (the holographic will named the second wife, YY, as estate trustee). YY, in turn, moved to dismiss WW’s will challenge. YY argued that WW did not have a financial interest in the estate, and thus did not have standing to move under Rule 75.06 of the Rules of Civil Procedure for the Court’s advice and direction regarding the estate.

The court held that, importantly, Rule 75.06 allows any person who “appears to have” a financial interest in an estate to move for directions. In other words, a claimant need not already have an interest in the estate. Rather, a claimant may obtain an order directing a will challenge if (s)he is a person who would inherit if the impugned will is found to be invalid.

This does not mean that anyone can tie up an estate with a meritless will challenge. The Court held that it can weed out frivolous will challenges at the most preliminary stage by refusing to make an order giving directions if the claimant fails to present sufficient evidence to establish a genuine interest in the estate. Such was the case in Jafari v. Ali Attar-Jafari.

In W.W. v. Y.Y., the Court considered prima facie evidence of suspicious circumstances surrounding the impugned will, including:

  • The vitriolic and hateful expressions in the will called the deceased’s capacity into question. This was particularly so when contrasted with an email from the deceased only three months earlier expressing a desire to reunite with his children.
  • Prior to the date the will was made, the deceased had sworn an affidavit attesting that his brain cancer affected his memory and his ability to think logically.
  • Interestingly, the Court found it significant that a lawyer would choose to draft his own holographic will: “the fact that he wrote his own will could be seen as unusual.”
  • Approximately 6 months prior to the impugned will, the deceased’s neurologist had recommended a neuropsychological assessment.

Given what was considered to be prima facie evidence of suspicious circumstances surrounding the will, the Court granted the order giving directions and allowed WW’s will challenge to proceed.

About Angela Casey
Angela is a partner at de VRIES LITIGATION LLP. Angela has extensive experience with capacity litigation, power of attorney disputes, dependant support claims, will challenges, and will interpretation proceedings. She routinely acts as agent lawyer for the Children’s Lawyer in contentious litigation. She also has extensive experience litigating commercial and shareholder disputes, as well as fraud actions. She has appeared before the Ontario Court of Appeal, the Ontario Superior Court of Justice, the Ontario Divisional Court, and several administrative tribunals.