Undue Influence and Testamentary Capacity
The recent decision of the Ontario Superior Court of Justice in the matter of Hutchison v. Hutchison [2006] O.J. No. 3231 (W.A. Jenkins J.) provides an illustration of the court considering the concepts of undue influence and testamentary capacity.
The plaintiffs in this case were three of the four children of the deceased. The defendants were the youngest child, and the child’s wife.
The evidence as considered by the court seriously called into question the capacity of the deceased. By 1996, the deceased was showing early signs of dementia. In 1998, he was found in his car, parked on a railway track. He was disoriented, and was taken to hospital. He was diagnosed as suffering from dementia. While in the hospital, he wandered away, and had to be returned by the police.
Following his diagnosis, he was released from the hospital and lived with the defendants at his home until his death in February, 2002 at the age of 86.
Shortly after his assessment in 1998, the deceased transferred his home to his youngest son. He also transferred his investment account. He then made a new Will wherein he bequeathed the whole of his estate to his youngest son. (In a prior Will, executed in 1992, he divided his estate equally amongst his four children.)
The plaintiffs gave evidence that the deceased was suffering from dementia as early as 1995, and that he wasn’t aware of what was happening around him.
With respect to the transfer of the assets, the court did not rely on any consideration of the issue of incapacity, but rather, set aside a transaction on the basis of undue influence. The court found that the deceased was, as of 1998, in failing health and dependent on the defendants for his care and comfort. The court stated that against this background, the defendant must show that the deceased entered into a transaction as a result of his own free will and informed thought. The court found that there was a presumption of undue influence based on the deceased’s failing health, and also based on the fact that the defendants took steps to convince the deceased that his other children were attempting to take his money.
With respect to the validity of the will, the court found that the deceased was confused and disoriented, and was suffering from dementia when he executed the new Will in 1998. The Court found that there was reason to doubt the deceased’s capacity to make a new Will and, consequently, the onus shifted to the defendants to prove the deceased’s testamentary capacity on a balance of probabilities. The court found that the defendants had failed to prove that the deceased had testamentary capacity when he gave instructions with respect to his new Will, and when he actually executed his new Will.
(Actually, the onus of proving testamentary capacity is always on the propounder. More accurately, and as the court indicated in the decision, the existence of suspicious circumstances may rebut the presumption of capacity, thus requiring the propounder to prove knowledge and approval and testamentary capacity.)
As a result, the transfer of the property and the investment accounts was set aside, as was the 1998 Will.
Have a great day.
Paul Trudelle
The plaintiffs in this case were three of the four children of the deceased. The defendants were the youngest child, and the child’s wife.
The evidence as considered by the court seriously called into question the capacity of the deceased. By 1996, the deceased was showing early signs of dementia. In 1998, he was found in his car, parked on a railway track. He was disoriented, and was taken to hospital. He was diagnosed as suffering from dementia. While in the hospital, he wandered away, and had to be returned by the police.
Following his diagnosis, he was released from the hospital and lived with the defendants at his home until his death in February, 2002 at the age of 86.
Shortly after his assessment in 1998, the deceased transferred his home to his youngest son. He also transferred his investment account. He then made a new Will wherein he bequeathed the whole of his estate to his youngest son. (In a prior Will, executed in 1992, he divided his estate equally amongst his four children.)
The plaintiffs gave evidence that the deceased was suffering from dementia as early as 1995, and that he wasn’t aware of what was happening around him.
With respect to the transfer of the assets, the court did not rely on any consideration of the issue of incapacity, but rather, set aside a transaction on the basis of undue influence. The court found that the deceased was, as of 1998, in failing health and dependent on the defendants for his care and comfort. The court stated that against this background, the defendant must show that the deceased entered into a transaction as a result of his own free will and informed thought. The court found that there was a presumption of undue influence based on the deceased’s failing health, and also based on the fact that the defendants took steps to convince the deceased that his other children were attempting to take his money.
With respect to the validity of the will, the court found that the deceased was confused and disoriented, and was suffering from dementia when he executed the new Will in 1998. The Court found that there was reason to doubt the deceased’s capacity to make a new Will and, consequently, the onus shifted to the defendants to prove the deceased’s testamentary capacity on a balance of probabilities. The court found that the defendants had failed to prove that the deceased had testamentary capacity when he gave instructions with respect to his new Will, and when he actually executed his new Will.
(Actually, the onus of proving testamentary capacity is always on the propounder. More accurately, and as the court indicated in the decision, the existence of suspicious circumstances may rebut the presumption of capacity, thus requiring the propounder to prove knowledge and approval and testamentary capacity.)
As a result, the transfer of the property and the investment accounts was set aside, as was the 1998 Will.
Have a great day.
Paul Trudelle
