05/06/2014 05:17 EDT | Updated 07/06/2014 05:59 EDT

Do You Know How To Prove the Validity of a Will?

In our last entry, we considered the basics of wills and trusts. This week, we continue in the same vein, but delve deeper into the validity of wills and the evidence that may be required to prove them.

The term probate describes the validation by the court of a will as the valid Last Will and Testament of a person. After the testator dies, it is often necessary to first apply to the court for probate before the testator's estate can be administered. Most of the time, this does not pose a problem. If the will does not give rise to the court registrar's concern, a will can be proved "in common form", meaning that only the application for a Certificate of Appointment, along with a supporting affidavit, most often the Affidavit of Execution, is required.

In some circumstances, something may be wrong on the face of a will or there may be an objection to the granting of a Certificate of Appointment in respect of the will. In these cases, further evidence or proof "in solemn form" may be required before probate will be granted.

Often a key issue within proving the validity of wills is the concept of testamentary capacity. At the time when a will is executed, in order for the will to be proved in solemn form, the testator must possess the mental capacity to execute the will, known as testamentary capacity, at that time. The threshold for testamentary capacity is high, relative to the legal capacity required to marry, to execute a power of attorney, or to manage one's own finances or personal care.

For an individual to possess testamentary capacity, he or she must understand what a will is, have an understanding of his or her assets, understand for whom he or she should be providing support within the will, and have capacity to understand the consequences of disposing of his or her property in a certain way. Where the testator's capacity at the time that a will is executed is called into question, the will that they have left may not be valid.

When considering the issue of testamentary capacity, the court will evaluate (1) medical evidence, including evidence that may be provided by caregivers or social workers, (2) lawyers' records, and (3) the evidence of other individuals, such as friends and neighbours. Despite the presence of compelling evidence supporting or disputing testamentary capacity, the final decision is for the court to make. Sometimes it will be argued that one type of evidence is more persuasive than others, but each class has its own strengths and none of the three is generally accepted as being most important.

The formal requirements with respect to the execution of a will are detailed within the Succession Law Reform Act. Two witnesses must be in the same room at the time that the testator signs the will. One of the witnesses typically swears an Affidavit of Execution, which serves as evidence that the testator signed the will. If there is any non-compliance with the formal requirements of a will executed in Ontario, the will is not valid. In some other jurisdictions, substantial compliance is sufficient, but, in Ontario, lawyers need to be very careful that they supervise the execution of the wills that they draft for clients.

Undue influence is a concept that is not unique to estate planning, and which may also be relevant to the validity of contracts. Within allegations of undue influence exists a gray area. Mere influence is permissible. Most testators feel pressure to arrange for certain testamentary dispositions, in one way or another. A spouse or children might influence a testator's decision making in a way that approaches the threshold for undue influence.

On the other hand, however, where an individual is forced into making a gift, that gift will not be legally valid. While vulnerability and corresponding exploitation are often involved in undue influence, it can be very difficult to determine what it means to be unduly influenced. Such a degree of coercion is most likely to take place in private. Evidence in support of an allegation of undue influence can be almost impossible to discover, and a finding of undue influence can only be made by the court.

Sometimes undue influence and suspicious circumstances are thought to be interchangeable concepts, but their differences are significant. Undue influence is the term used when it is known that the testator was coerced, whereas suspicious circumstances are a set of factors that make the court feel that some aspect of the will requires more proof. For example, the sudden disinheritance of a beneficiary, included in previous wills with no clear explanation for the testator having done so, may constitute suspicious circumstances. The result of the court's consideration of suspicious circumstances may, however, be the determination of undue influence.

One major difficulty in establishing the validity or invalidity of a will is that it is impossible to consult the testator to verify what his or her intentions were at the time that a will was executed. This often means that evidence such as solicitor's records or medical documentation must instead be relied upon to determine the issues of testamentary capacity and undue influence.

*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.