Adams Estate v Wilson: Who has standing to challenge a Will?

A recent case from the Saskatchewan Court of Appeal reminds us of the importance of first confirming you have standing to challenge a will.

“Standing” refers to the question of whether a person has a sufficient legal interest in a given dispute. In other words, will they be in a different position, depending on the outcome of the proceeding? If they do not have such interest, they cannot be a party in that  proceeding.

In Adams Estate v Wilson, 2020 SKCA 38, an elderly woman died with no children. She left a large ranching operation, and land holdings. A neighbour, Mr. Wilson, claimed that he had helped the deceased for decades, and in return, she allegedly had promised him two things:

  1. That she would pay him $1,000 per month to help cover expenses such as gas and use of his truck and tools; and
  2. That Mr. Wilson would inherit her ranching operation and all her land, cattle and equipment when she died.

This agreement was not in writing, and Mr. Wilson was further not named in the deceased’s will.

The deceased made the will in May of 2011. It made no direct mention of Mr. Wilson. The will was vague, and not specific. It said that her executor, a Mr. Staples, knew that certain persons were trustworthy and loyal and helpful to the deceased, and Mr. Staples was to use his best judgment to ensure that some portion of the estate is given to those persons.

Mr. Wilson was also not a family member of the deceased. Thus, he would not benefit in the case of an intestacy (i.e. a situation in which no will was found valid). Moreover, Mr. Wilson was not a beneficiary of any prior will made by the deceased.

The issue:

Despite the above, Mr. Wilson brought an application to prove the will in solemn form. Solemn form means that a will must go through a much more rigorous trial process to see if it is truly a valid will. Typically, a solemn form application is brought if someone thinks a given will is invalid.

Here, the issue on appeal was whether Mr. Wilson had standing to apply for solemn form.

The Court of Appeal held that he did not. In reality, Mr. Wilson’s claim was a debt claim, not a claim involving the validity of the will. Even if he did prove himself a creditor, the Court noted that creditors have no right to challenge the validity of a will. More practically, even if Mr. Wilson struck down the will as invalid, that outcome alone would place him no closer to obtaining monies out of the estate:

  • [79]           I have concluded, based on my previous analysis, that as a creditor or potential creditor of the estate, Mr. Wilson does not have the kind of interest that would entitle him to challenge the Will or require it be proven in solemn form. As well, Mr. Wilson does not have standing as a potential creditor in that, if his application to set aside the Will was successful and an intestacy were created, there would be nothing to be gained by him as a creditor. His claim against the estate would be the same. He has no stake in the outcome and, therefore, standing under Rule 16-46 cannot be established. [emphasis added]

Alternatively, Mr. Wilson also claimed that he had standing, in that he might eventually be proven (at a future trial) to be one of the persons who were considered “trustworthy and loyal and helpful”. However, this argument too did not explain why  Wilson was therefore applying to strike down the will. If Mr. Wilson succeeded in such an application, he would invalidate the “very bequest upon which he based his claim of standing,” and have “eliminated any chance that he would take under the Will” (para 84).

Mr. Wilson later sought to appeal this decision to the Supreme Court of Canada, but leave to appeal was not given.

Conclusion:

In short, anyone who wishes to challenge a will should ask if their legal, and practical, position will be improved by striking down a given will. In the case of someone like Mr. Wilson, it appears that another strategic path open to him would simply have been to:

 

  1. Avoid the expense of a will challenge;
  2. Instead, advance his claim as creditor to a determination, while considering interim measures to pause distribution of the estate assets.

 James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Renouncing as executor may not always be an automatic right

An interesting lesson for executors comes from the recent Saskatchewan decision in Goby v Frederick, 2020 SKQB 201

Wayne Frederick passed away. His will appointed his sister, Shirley Frederick, to be the executrix of his estate. Shirley obtained letter probate.

However, the only asset in the estate is a piece of land valued at $800. Moreover, the estate of Wayne Frederick owed a lot of debt. Shirley Frederick desired to therefore renounce probate. Shirley discovered that she could not transfer the land in the estate without paying for a valuation, which she said neither she nor the estate can afford.

Shirley Frederick desired to therefore renounce probate, and hoped the Public Guardian would assume the role.

Therefore, the issue in Goby v Frederick was whether an individual has the right to simply automatically renounce as executrix of an estate, after receiving Letters Probate.

The Court held no. An individual cannot renounce, unilaterally, as executrix, after receiving Letters Probate. The Court required that Shirley bring a formal court application to be removed as executrix, and that it be served on the public trustee in view of the minor beneficiaries. An affidavit by

Shirley Frederick was to accompany the application, setting forth evidence of her inability to administer the estate.

The lesson:

Persons who are named executors of problematic estates (i.e. ones with high debt, or whose administration may be difficult to carry out) should be sure that they wish to serve as executor.

Once an executor obtains letters probate, if you later decide you wish to renounce, you may need to go to the expense and time of a court application to do so.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

How to avoid your Will from becoming challenged after you die

More and more wills are being contested in Saskatchewan each year. And the sad truth is that many challenges are avoidable if the will-maker had done one or both of the below things:

  1. Hired a lawyer to draft their will, and keep good notes of their instructions;
  2. Told the will-maker’s family of the terms of the will, before they died.

On numerous occasions I have seen situations in which a person had sought to avoid the cost of a lawyer-made will. They therefore draft their own will. When the person later passes away, the result is sometimes a confusing will, often made in secrecy and without any independent notes showing the true intention. This situation often spawns litigation, which can then drain tens of thousands of dollars in legal fees from the estate. 

Thus, the first lesson is this: think carefully about perhaps hiring a lawyer to make your will. Moreover, if possible, look for a lawyer who actually specializes in wills and estates, and better knows all of the questions to ask, and situations to avoid.

Second, talk through your goals and assets with your children, and keep notes of such conversation. This is especially true if your new will is making a departure from a prior will. It is far more difficult for a child to later suggest you had dementia, or were pressured into making your will, when the child had the opportunity to talk about your will with you in person.

A will is one of the most important pieces of paper you can ever sign. It can control who is left in charge of your children, your home, and your savings. It is meant to give you peace of mind that when you pass on, your wishes will be followed. It is therefore worth putting in the time to ensure your will is done right.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Call for feedback on behalf of the CBA

James Steele is Legislation and Law Reform Director of CBA Saskatchewan.

Comments are invited on the SK Government’s ongoing development of Regulations to support The Financial Planners and Financial Advisors Act.

CBA Members are welcomed to review the Ontario draft regulations and offer any comments on said Regulations (insofar as such Ontario Regulations will form the basis of the Saskatchewan regulations). The Ontario draft regulations may be found HERE. Any comments on the above Regulations can be submitted to James Steele at j.steele@rslaw.com by Oct 31, 2020.

Lawyers James D Steele