Q: In the mid-1980s, my mother was living with my brother in Saskatchewan. She made a will at that time and then came for a visit to our place in British Columbia. She decided to stay and eventually went to a nursing home located near our home. At the same time we discovered that my brother had removed the contents from her home in Saskatchewan and was transferring money from her account to his.
Given the situation, we obtained the assistance of the Public Guardian and Trustee to take charge of Mom’s affairs. This worked fine for many years. While the trustee looked after her finances, my wife and I looked after Mom.
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After Mom died, her will named my brother as executor and left the house and balance of her property to him. After all we did for her this does not seem fair. Is it possible to have this will contested or revoked?
A: A will can be contested. Unless everyone who had an interest agreed to divide the estate differently than set out in the will, a challenge of a will would have to go to court. To succeed in court you would have to prove one of three things: that the will does not adequately provide for the support of dependents; that the deceased was not mentally capable of making a will at the time it was made; or, that the will was made under duress or undue influence.
Here are some examples. Nephew Abel says to Bella: “You know there aren’t a lot of people around who will care for you. If you don’t leave everything to me you’re going to find yourself pretty lonesome.” Or Abel says to Bella: “Let’s go see the lawyer and get a will made.” Before going he gives Bella some drugs to relax her. In both situations, Bella leaves everything to Abel. These might be situations where a court might set the will aside.
There is no legal requirement that an estate be left to family members or that they be treated equally.
Because some of the family are not happy with a will is not grounds for setting it aside.
The Supreme Court case of Vout vs. Hay illustrates. Hay was a bachelor who by the time he died had accumulated an estate of $320,000, most of which he left to his 29-year-old female friend. She was also named executrix of his will. Among other things she helped him with farm chores. There were no allegations of a sexual relationship between the two.
The trial judge and the Supreme Court both concluded the will was sound. The trial judge said: “The hard reality is that the Hay family simply cannot accept that Clarence Hay might really have intended to leave a large portion of his estate outside of the family …. In my view, Clarence Hay made his will exactly the way he intended.”
