Family, Estates & Trusts 

FREE CONSULTATIONS

|

Suspicious Circumstances Displace Presumption of Valid Will


Usually where the person making a will is shown to have properly executed the will, and to have reviewed it and understood it, the court will presume that the testator knew and approved of the will’s contents and had the necessary capacity to make a valid will. However, in some cases there will be suspicious circumstances and the person seeking to rely on the will have to prove that the testator had the required testamentary capacity.

De Araujo v. Neto 2001 BCSC 935 background

In the case of De Araujo v. Neto, 2001 BCS, the testator was from Portugal and spoke no English. In 1968 he married a woman who had two adult children, Maria and Carlos, who both lived in Canada. The testator moved to Canada in 1981 with his wife. From 1990 until 1994 the testator and his wife mostly lived with Maria.

The couple were estranged from Carlos by this time, and drafted a will in 1991 leaving their estates to Maria. There was some evidence that they were afraid of Carlos, because he had mistreated them. During this period the testator made two monetary transfers to Maria, to help her buy a condo and later to put toward the purchase of a house. In 1994 the wife passed away, and the testator was diagnosed with cancer.

Over the next year, the testator’s health and his relationship with Maria began to deteriorate. In 1995 he moved in with Carlos. Almost immediately thereafter he made a new will, leaving his estate to Carlos and to two grandchildren. He executed another will in 1996 leaving everything to Carlos only. Upon the testator’s death, Carlos and Maria each tried to rely on the wills that benefitted them.

Suspicious circumstances?

The court noted several suspicious circumstances surrounding the 1995 and 1996 wills.

The testator was elderly and ill. He had moved out of the home he’d lived in with Maria for a long time and almost immediately Carlos took him to a lawyer to draft a new and drastically different will, which benefitted Carlos. Carlos also gave the relevant instructions to the lawyer drafting the 1995 will. The evidence suggested that the testator had nothing to do with the creation of the 1996 will. The evidence showed that by 1995 the testator was probably suffering from early dementia.

For a testator to have testamentary capacity, they must:

  • understand the act of making the will,
  • understand the extent of the property of which they are disposing,
  • be aware of the people ordinarily expected to benefit from the will, and
  • recognize the potential claims of others who are being excluded.

The final word on these suspicious circumstances

The judge decided that although the testator had some diminished mental ability and was ill at the time he made the 1995 and 1996 wills, he had testamentary capacity. However, the judge went on to determine that these wills were not valid due to Carlos’ undue influence over the testator. The testator was suffering from at least mild dementia and easily confused, and it was Carlos’ idea to see a lawyer and draft a new will. It also appeared that Carlos gave the testator the idea that Maria had stolen money from him, and at Carlos’ insistence the testator started a lawsuit to get back the two transfers of money he had made to Maria in the early 1990s.

The court found in Maria’s favour, holding that the 1991 will was valid and requiring Carlos to repay the testator’s estate for a property in Portugal that he had received from the testator for reasons he could not satisfactorily explain.

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
(604) 900-2538

TELL US HOW WE CAN HELP

(604) 900-2538

Contact Us
  • We were made to feel valued and heard. Integrity, competence and a passion for justice definitely describes Onyx. They are also caring, compassionate and have a good sense of humour.

  • Thanks to Onyx’s straightforward approach, this litigation was resolved with the best outcome for myself and my children. Although this ordeal was emotionally trying, we can get on with our lives, without added worry and stress.

  • I chose the right law firm and I know our future is on the proper course because of Onyx. I wouldn’t hesitate to tell anyone who needs good legal representation to take my words to heart.

We will find the best way to help you

Vancouver

650 West Georgia Street
Suite 1215 - The Scotia Tower
Vancouver, BC  V6B 4N9

T (604) 900 2538
F (604) 900 2539

reception@onyxlaw.ca

New Westminster

26 Fourth Street
Suite 100
New Westminster, BC  V3L 5M4

T (604) 900 2538
F (604) 900 2539

reception@onyxlaw.ca

Kelowna

1631 Dickson Avenue
Suite 1100
Kelowna, BC  V1Y 0B5

T (604) 900-2538
F (604) 900-2539

reception@onyxlaw.ca

The information on this website is for general information purposes only. Nothing on this site should be considered legal, financial, tax, medical, or any other professional advice.

Powered by GLP Marketing

Copyright © Onyx Law All Rights Reserved