Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
Bringing and defending will challenges is at the core of an estate litigation practice. As discussed in Part I of this series, will challenges are often founded upon a lack of testamentary capacity at the time the will was executed, undue influence on the testator, a lack of knowledge and approval of the contents of the signed will on the part of the testator, or a failure to meet the statutory requirements for a duly-executed will. Testamentary capacity involves the mental ability to understand and appreciate the nature and effect of a testamentary document at the time of signing, among other things. A lack of testamentary capacity on the part of a testator means that, because he or she could not have formed a clear understanding of the nature and effect of the signed will, the will is invalid. This can be difficult to establish, as mental capacity may fluctuate over the course of hours or days, and, in many cases, gradually deteriorates over time. In the majority of litigated cases, the testator's mental status is somewhere in the grey area between full capacity and clear incapacity. Determining the appropriate parties to serve with materials in a will challenge can be an onerous task. Parties should include everyone who appears to have a financial interest in the estate. This would usually include every beneficiary in the challenged will(s), every beneficiary in any former will or wills, as well as anyone with an entitlement in the case of an intestacy. Further, it needs to be determined whether circumstances require service on the Public Guardian and Trustee and/or the Office of the Children’s Lawyer. Once a person has been served with materials on a will challenge, he or she has a number of options going forward. They may choose to take a position on the validity of the will, which may involve siding with other parties with shared interests. Some may be unwilling to become involved in the proceeding. Regardless of whether the parties want to be aggressive or take a back seat in the litigation, everyone who has a financial interest in the estate has a right to take part in the litigation. Should a party wish to take part in the litigation, he or she is usually required to file a Notice of Appearance, under Ontario's Rules of Civil Procedure. If the person does not want to actively participate, there is also the option of filing a Statement of Submission of Rights to the Court. Persons who have submitted their rights are not considered parties to the proceeding and are not at risk of being liable for the legal costs of the parties, but are also not entitled to their own costs. They still have the right to be notified of the time and place of the trial and to receive a copy of the final judgment. If the matter settles, they will need to consent. This option may appeal to people who are not directly impacted by the litigation. Although arduous at times, locating and serving all of the required people is necessary. It may also be helpful in gathering evidence which will ultimately assist in the determination of the case. Some of the beneficiaries may not be at the forefront of the litigation, but nonetheless have pertinent information about the testator or the circumstances of the will that can be of assistance. They may have been present during an important period or at a key event and may become a valuable resource. Because will challenges often deal with issues regarding mental capacity to sign a will, medical records, records of the lawyer that drafted the will, and financial records are often required. Medical records speak to the testator’s physical and mental state during periods when he or she required medical care. The solicitor's records can shed light on the circumstances in which the testator gave instructions and signed the will. They might clarify the testator's intentions, or give insight into what steps were taken by the solicitor to probe for signs of incapacity or other problems. In addition to clarifying the value of the estate, the financial records of the testator can show signs of financial control or abuse, as well as any unusual activity. For those engaging in estate planning and hoping to avoid future issues, there are some steps that can be taken to assist in “bulletproofing” a will. It is a good idea to go to a solicitor with experience in the area of will drafting and who takes good notes. The lawyer’s notes may be among the key documentary evidence in support of the will if it is ever challenged. Furthermore, a capacity assessment at a time that corresponds with the making of the will can be very helpful in avoiding or defeating a subsequent will challenge.