This recent cases provides an important warning for potential beneficiaries on how much help and assistance they provide when it comes to drafting Wills and Powers of Attorney (“POA”) and other legal documents. We often see children or other relatives attempt to be helpful in guiding their loved one towards a known or trusted lawyer. Beware that this can create issues. Even if the lawyer is unknown, if too much “guidance” is found, such guidance may be deemed to be “suspicious” by the court.
In Graham v Graham, one of the children brought a summary judgement motion against his sibling who was the sole beneficiary and granted sole power of attorney for their ailing mother´s property. He used that power of attorney to transfer the ownership of the home (the majority of the potential estate) to him exclusively days prior to her death in an effort to avoid a nominal amount of taxes.
Justice Sheard considered the procedure for a summary judgement in the estate context and confirmed that she would be able to use the extended power under Rule 20.04 at her discretion if it was in the interests of justice and could resolve the proceedings after partaking in the regular assessment. In the end, she granted herself the discretion to use these fact finding powers to resolve the matter.
In Graham, the Judged reviewed the facts and found that the respondent and his wife were instrumental in the creation of the Will & POA, including finding the lawyer, completing the forms used to create the Will & POA, arranging for the lawyer to come to the hospital to meet with the deceased, meeting with the lawyer and the deceased before the deceased signed the documents after they left the hospital room.
These facts, in combination with the deceased´s physical and mental state, were enough to find that suspicious circumstances existed. Of note, she was hospitalized for severe pain and had taken strong pain killers in the hours prior to the signing of the Will and POA. Justice Sheard followed the 5 factors enumerated in Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al when making the decision:
1) the extent of physical and mental impairment of the testator around the time the will is signed;
2) whether the will in question constitutes a significant change from the former will;
3) whether the will in question generally seems to make testamentary sense;
4) the factual circumstances surrounding the execution of the will; and
5) whether a beneficiary was instrumental in the preparation of the will.
In particular, it was found that the drafting lawyer had essentially relied upon the instructions of the son and his wife to create the documents which the deceased did not have an opportunity to review before the lawyer went to the hospital to get her to sign the documents. In addition, there was no evidence that the deceased was actually given the legal documents to review or that they were read to her.
Furthermore, the reasons given to exclude some of the children were factually wrong. The drafting lawyer based his assessment of her capacity on the assumption that this information (which appears to have been provided by the sole beneficiary) was accurate.
As suspicious circumstances were found, the responding beneficiary bore the onus to prove that the deceased had testamentary capacity and knew and approved of the contents of the Will. As always, the test to prove testamentary capacity is high.
In considering the deceased´s testamentary capacity, the Court considered her health in the weeks and months leading up to the signing of the Will. However, the examination focused on the approximately 21 minutes in which the drafting lawyer was at the hospital and the documents were signed. While there were notes about her cognitive function in the hours surrounding the execution of the documents, Justice Sheard found that “medical records for this time period time do not respond to concerns about [the testator´s] capacity identified above in these reasons. At most, the medical records document that [the testator] could talk in full sentences.” This was not sufficient to discharge the responding party´s evidentiary burden.
The Court relied on the same facts and considerations in finding that the POA gave rise to the presumption of undue influence (which could not be rebutted), that she lacked the capacity to execute the POA and that she did not have the capacity to gift the house.
As a final note, the successful applicant was awarded costs which were to be paid by the respondent rather than the estate. This reflects a growing trend in which Judges are loathe to deplete estate funds through litigation and are increasingly ordering the parties to pay costs instead.
What we can take from this case is that any beneficiary who may benefit from the creation of a Will or POA document should take pains to ensure that the testator had capacity and the circumstances surrounding the creation of the Will or POA would not appear suspicious from another´s point of view. The circumstances in Graham are perhaps extreme but if even simple acts of perceived assistance can be enough for a finding of suspicious circumstances which risks the validity of the will. Even the best of intentions to assist a loved one can cause problems down the road if there is any involvement in the creation of these documents.
If you are a beneficiary and worried about the circumstance surrounding the creation of a Will or POA, it is important to seek legal advice from a qualified professional.
 2019 ONSC 3632
 Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043 at 11.