Family, Estates & Trusts 



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.

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