The recent Saskatchewan King’s Bench decision in Harrison v MacMillan offers an example of a will challenge that failed to raise a genuine issue.

While there is no new point of law offered by Harrison, the decision provides a helpful caution to parties who wish to challenge a will. If parties do not have direct firsthand evidence which raises a genuine issue of incapacity or undue influence, they may find that the Court dismisses their challenge. It also reminds us that eccentricity by an elderly testator is not itself evidence of testamentary incapacity.

Background:

The factual background in Harrison included the below:

1. Walter Senkiw (“Deceased”) died on September 27, 2022.
2. The Deceased had made two wills in the last several years of his life.

1. 2018 Will:The 2018 Will named the Deceased’s sister Francis Harrison (“Francis”) as executor and sole beneficiary;
2. 2022 Will:The June 3, 2022 Will named a friend of the Deceased, Ben MacMillan (“Ben”), as executor. It named Ben’s children as beneficiaries.

3. Letters Probate were granted for the 2022 Will on March 6, 2023.
4. Francis later brought an application for solemn form which sought to challenge the 2022 Will. Francis alleged that Walter lacked capacity or was unduly influenced at the time he made the 2022 Will. Francis provided evidence which made the below allegations:

1. Francis provided evidence suggesting that Walter had engaged in erratic behavior and had a diminished mental state between 2019–2022:

1. Francis states that Walter always loved Moosomin and his home there, but around 2019, she observed Walter’s attitude change, and he became increasingly paranoid. She avers that Walter did not trust anyone in Moosomin, and he believed that people were following him;
2. In 2019, Walter had his cell phone disconnected and would contact Francis by payphone. Francis states this was because he did not want anyone to call him regarding his legal issues;
3. Walter was convinced his neighbours purposely made noise to irritate him;
4. Francis observed that Walter did not grasp the cost of flowers they purchased for Francis’ mother-in-law and that he tried to pay with a handful of loose change;
5. In the summer of 2021, Walter financed the purchase of a trailer and parked it in an RV park outside Winnipeg. Francis would regularly visit him there and learned that there were occasions when Walter travelled from Winnipeg to Moosomin in the middle of the night to check on his house and then return to Winnipeg by the morning. It is unclear when or how often this happened;
6. In late 2021, a helicopter flew by the RV park when Francis visited Walter. She explained that Walter was convinced the Royal Canadian Mounted Police were looking for him;
7. On another occasion in 2021, Walter asked Francis to move to Moosomin and was upset when she declined his offer to leave her job and family in Winnipeg.

2. Francis alleged that there were suspicious circumstances including Walter’s odd conduct, and his poor home conditions. Francis avers to attending Walter’s home shortly after learning of his death in October 2022. When she arrived, she observed that Walter’s front door was sealed, the kitchen window was boarded up, and he had numerous deadbolts on his back door. She observed white towels placed throughout the house on top of the carpet, and the pipes had been removed from a bathroom sink. Walter’s toilet did not flush. Walter had buckets of human waste in the bathroom; and clothes hanging on lamps; and
3. Francis also emphasized her concern that the 2022 Will constituted a sharp departure from his 2018 Will.

5. Ben sought to uphold the 2022 Will. Ben offered evidence that described his relationship with the Deceased as neighborly, and that Walter himself had initiated any decision to change the 2018 Will. Ben denied any improper influence or involvement in Walter’s testamentary decisions.
6. Ben said that Walter complained to him about Francis and other members of his family who had not made an effort to contact Walter in recent years. Ben understood Francis lived in Manitoba and that Walter had recently lost the relationship with Francis.
7. Ben spoke of observing Ben’s wife and Walter speaking almost daily in their yard, while they were neighbors. Ben states that Walter occasionally gifted him work gloves, and once they moved to a different street in Moosomin, Ben and his family would stop by and visit Walter. Ben describes assisting Walter with various tasks around his home. Ben and his family later moved to a farm.
8. Ben spoke of Walter visiting Ben’s farm on his way home from a camping trip in 2022. During that visit, Walter showed Ben and his wife his will, naming Ben as executor and Ben’s children as beneficiaries. Ben states that he and Walter had never spoken about estate planning before this, and this was the first Walter had mentioned anything to Ben about his will. Ben further stated that Walter indicated he did not wish his estate to go to his family and chose to benefit Ben’s children instead.
9. The 2022 Will had been drafted by a lawyer, Lynnette Bock. Ms. Bock provided evidence of her experience in estate planning, indicating that during her career she had completed over 1,000 wills for clients.
10. In her affidavit, Ms. Bock described her routine when meeting with clients on estate matters as including:

1. Ensuring that clients were oriented to time or place and had no difficulty following the conversation;
2. Observing the person’s hygiene and appearance and whether they attend her office independently or with another person;
3. Tailoring her questions to gauge whether the client is under duress and would address any concerns directly with the client.

11. Bock attested to following her usual routine when meeting with Walter on May 20, 2022, and again on June 3, 2022. She offered the below recollections:

1. They met at her Rocanville, Saskatchewan office, and she observed that Walter had driven himself to the appointments. Walter was on time and wore a mask as required due to the COVID-19 pandemic;
2. Bock described Walter as a “bit odd” but had no concerns about Walter’s mental capacity. Ms. Bock states that she has clients whose behaviors were far more concerning than the ones that Walter exhibited;
3. Bock engaged Walter in typical small talk and noted that he was clean and well-groomed for both appointments. She did not observe any behaviours that she would consider a red flag;
4. Bock’s practice was to review every paragraph of a will with every client before they signed it.

12. In short, Ms. Bock provided evidence that Walter had instructed Ms. Bock that he wanted to leave his estate to Ben’s children. Ms. Bock had simply followed such instructions.  Ms. Bock did not meet or speak to Ben until Walter’s death when Ben and his wife Monica attended at Ms. Bock’s office.

Issue:

This case comment focuses on the below issues which were discussed in Harrison:

1. Issue 1: Was there a genuine issue of testamentary capacity in relation to the 2022 Will; and
2. Issue 2: Was there a genuine issue of undue influence in relation to the 2022 Will.

Decision in Harrison:

Overview of the process of challenging a will:

To challenge a will in Saskatchewan, a challenger must go through two levels of hearings:

1. The first stage is a threshold Chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial;
2. The second stage (if the applicant is successful) is a trial hearing to actually determine the allegations made against the will.

The Court in Harrison noted that it was concerned with the first stage of a will challenge. The Court’s focus was thus centered on determining if Francis had provided sufficient evidence of a genuine issue which would justify the expense and delay of a future trial.

Issue 1: Was there a genuine issue of testamentary capacity in relation to the 2022 Will

The Court examined if Francis had provided evidence that Walter lacked testamentary capacity. Such analysis required the Court to review if Walter appeared unable to understand the below:

1. The nature and extent of his property;
2. The persons who are the natural objects of his bounty;
3. The testamentary provisions he is making; and
4. Whether Walter was capable of appreciating these factors in relation to each other, and forming an orderly desire as to the disposition of his property… (see para 50 of Harrison).

Francis argued that suspicious circumstances surrounded the execution of the 2022 Will. Francis stated that the fact the 2022 Will was executed almost four months before Walter’s death is suspicious in and of itself. Francis claimed that Walter’s naming of Ben as executor and his children as beneficiaries was inexplicable.  

Francis averred that Walter had never expressed any desire or intention to have anyone other than Francis as the executor and beneficiary of his estate. Based on Francis’ observations of his behaviour between 2019 and his death in 2022, Francis believes that Walter did not have the testamentary capacity to make the 2022 Will. Walter passed away a few months after the 2022 Will was signed.

Francis also appended a letter from a Melville lawyer (“Melville Lawyer”), who was Walter’s previous counsel and the lawyer who had prepared Walter’s 2018 Will. In this letter, the Melville Lawyer expressed concerns to Francis about Walter’s mental capacity, explicitly stating:

I suspect that Mr. MacMillan was a con artist who manipulated or coerced your brother into naming him as the executor for his estate. Your brother would not have had the mental capacity to make a new Last Will and Testament appointing Mr. MacMillan as his executor and Mr. MacMillan’s children as beneficiaries of his estate. The actions of Mr. MacMillan since being appointed as executor of the estate are self-explanatory.

Francis also included transcripts from Walter’s criminal court proceedings (2018–2021). These records, as summarized in the reasons of the court proceedings, allegedly showed repeated issues relating to Walter’s ability to instruct counsel:

1. Multiple lawyers (including the Melville Lawyer and other court-appointed counsel) were unable to obtain clear instructions from Walter, with at least one lawyer asking to withdraw for this reason;
2. The Crown and counsel expressed frustration about Walter’s lack of cooperation and inability to properly participate in his defence;
3. Francis suggested that these events created a public record documenting impediments to Walter’s lack of decision-making capacity during his criminal court proceedings.

Francis suggested that these patterns from Walter’s criminal proceedings—where his lawyers repeatedly cited difficulty obtaining proper instructions—were indicators that Walter lacked testamentary capacity around the time that Walter executed the 2022 Will. Francis’ argument was that these issues were not isolated to the criminal legal proceedings, but reflected a broader inability to understand complex decisions like executing a valid will in 2022.

However, Court in Harrison declined to order a trial on the ground of incapacity. The Court found no evidence suggesting a genuine issue relating to Walter’s capacity to make the 2022 Will. The Court expressly noted the lack of any medical records or direct evidence of Walter’s cognitive impairment as of 2022. Rather, Ms. Bock’s uncontroverted evidence showed Walter understood the process and provisions of the new will.

Moreover, the Court held that the mere fact that Walter’s home was untidy and needed repair did not mean that Walter did not understand the nature and extent of his property. The fact that he had his front door boarded up, and several locks on the back door was unusual but not demonstrative of a lack of capacity to make decisions when he executed the 2022 Will.

Moreover, the Court referenced a December 2021 transcript, which showed that Walter had been found to have capacity to make legal decisions in 2021.

The transcript provided a record of the Melville Lawyer re-appearing as counsel for Walter in a criminal proceeding. In that transcript, the Melville Lawyer indicated that the Melville Lawyer had canvassed 606 of the Criminal Code with Walter, and Walter entered a guilty plea. In a criminal proceeding, the court is required to ensure that an accused understands the implications of a guilty plea before accepting it. This is codified in section 606 of the Criminal Code, which outlines the conditions for a valid guilty plea. It outlines the types of pleas an accused can enter, the conditions for accepting a guilty plea, and procedures for handling situations where an accused refuses to plead etc.

The Court took this December 2021 transcript as confirming that as of 2021 Walter was in fact able to understand the criminal process, and also instruct his counsel. The Court wrote the below in Harrison:

[61]      The Court [in the criminal proceeding] accepted Walter’s guilty plea and the joint submission on sentencing. I see no reference to Walter’s lack of capacity or decision-making ability then. Surely, [the Melville Lawyer] would not have taken instructions to enter a guilty plea and represented to the Court that he had canvassed  606 of the Criminal Code with Walter if he believed that Walter could not give such instructions or understand the gravity of the s. 606 inquiry.

..

[76]             I accept that Walter could make decisions when he instructed [the Melville Lawyer] to enter a guilty plea to a criminal charge in December 2021. The Court heard and accepted the guilty plea and counsel’s submissions that he had canvassed s. 606 with Walter. Any evidence that Walter may have lost capacity between December 2021 and June 2022 is thin.  

The Court also disregarded the Melville Lawyer’s letter to Francis in which he wrote “Your brother would not have had the mental capacity to make a new Last Will and Testament…” The Court found that there was an insufficient evidentiary basis to conclude that the Melville Lawyer could make direct conclusions as to Walter’s capacity in 2022. We find the below in Harrison:

[64]          I have disregarded [the Melville Lawyer’s] letter in its entirety. [He] knew Walter and prepared the 2018 Will. The Court is unaware of how [he] can speak to Walter’s capacity beyond preparing and executing the 2018 Will. He does not even comment on his steps to ascertain Walter’s capacity then. He does not say when he next saw Walter again, but we know he represented Walter intermittently in his criminal matter between 2018 and 2021. [He] says nothing about his appearances in criminal Court nor does he provide any observations he made of Walter during those appearances. Further, [his] letter is not evidence. It is an unsworn letter appended to Francis’ affidavit. [His] comments about Ben are not based on actual knowledge of Ben or Ben’s relationship with Walter. Finally, his opinion that Walter did not have the testamentary capacity to execute a new will appointing Ben as executor is undermined by his representations to the Court in December 2021, when he entered a guilty plea to assault on Walter’s behalf and advised the Court that he had canvassed s.  606 with Walter.

Issue 2: Was there a genuine issue of undue influence in relation to the 2022 Will?

Francis made a second argument against the 2022 Will. Francis also argued that there was a genuine issue raised in relation to undue influence. Undue influence is defined as pressure which actually compels the testator to do something which they do not desire to do. The onus to show undue influence rests on the challenger.

Francis made the below arguments:

1. Francis alleged that Walter radically changed his testamentary plan from the 2018 Will (where she was sole beneficiary) to the 2022 Will (favouring Ben’s children). Francis asserted that this fact suggested coercion or improper influence by Ben;
2. Francis described the breakdown of Walter’s family ties and her own estrangement, coupled with the unusual selection of non-family beneficiaries, as amounting “suspicious circumstances;”
3. Francis further alleged that Walter’s erratic and paranoid behaviors (such as increased home security measures and isolation), as well as the poor state of his home, pointed to his vulnerability and susceptibility to coercion by Ben.

The Court reviewed the evidence and held that Francis had not in fact provided sufficient evidence to raise a genuine of undue influence. The Court relied on the below grounds:

1. There was no evidence that Ben was present during or involved in the process of making or signing the 2022 Will. Ben’s uncontested affidavit stated that he did not discuss estate planning with Walter, was unaware of the will’s particulars, and that Walter himself initiated any discussions about his estate;
2. Ms. Bock drew up the 2022 Will and had followed standard practices to verify capacity and ensure that instructions were voluntary. She detected no signs of coercion, pressure, or influence on Walter when he gave instructions or executed the Will.

The Court held that the mere fact of a dramatic change in beneficiaries, or evidence of Walter’s odd behavior, did not amount to proof of coercion.

Conclusion:

The Court held that Francis had failed to raise a genuine issue requiring a trial. The Court held below:

[82]           Without conflicting evidence on the issue of testamentary capacity or undue influence or a conflict in the evidence about Walter’s capacity or the issue of undue influence at the time the 2022 Will was executed, there is no reason to continue the matter to a trial. Francis has not raised evidence that Walter did not appreciate or understand the nature of the document or the extent of the property to be disposed of. Any odd behaviours Walter may have had do not appear to have impacted his mental competency to make a will.

The application for the 2022 Will to be proven in solemn form was dismissed. Francis was ordered to pay costs of $1,500 to Ben.

Harrison offers certain lessons for any will challenger. These include:

1. The evidence of the attending solicitor who took instructions from the deceased is often crucial in the eyes of the Court. Here, the evidence of Ms. Bock was very influential in convincing the Court that there was no genuine issue requiring a trial;
2. Suspicious behavior by an eccentric elderly relative, who suddenly makes a notable change in their will, is not itself sufficient evidence to justify the expense of a future trial. Rather, firsthand and direct evidence of testamentary incapacity or potential undue influence at the relevant time, will generally be required to justify the expense of a trial. For a relative who may not have had frequent contact with the deceased in their last years, it may be difficult to acquire firsthand evidence on such topics;
3. When alleging that there is a genuine issue of incapacity, it is very helpful to obtain supportive medical records of incapacity. In Harrison, the Court explicitly commented on the lack of any supporting medical records offered by Francis in relation to mental capacity (see para 73 and 81). That said, in light of the recent decision in Stradeski v Kowalyshyn, 2023 SKKB 177, it can also be very difficult for a challenger to obtain such medical records before stage 2 of a will challenge. In the view of this author, the disclosure difficulties posed by Stradeski in this regard may one day have to be addressed by the Court of Appeal.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.