In the recent BC Supreme Court case of Halliday v Halliday Estate, 2019 BCSC 554, Clark Wilson LLP was successful in challenging the validity of two Wills on behalf of its client.

In this decision, Chief Justice Hinkson discusses some of the key considerations in assessing testamentary capacity, sheds new light on the scope of undue influence, and makes a key finding on when the hearsay evidence of a deceased person is admissible.

The testator in this case was diagnosed with dementia in 2012 and passed away in 2017 while in his late 80’s. In 2001, the testator made a Will leaving a life interest in his estate to his second wife (the plaintiff’s step-mother) and the residue to his son, the plaintiff. In the spring of 2014, the testator executed two new Wills leaving a small monetary gift to the plaintiff, and the residue of his estate to his second wife, or if she should predecease him, to two of his second wife’s daughters, the defendants.  The only difference between the two Wills, made approximately one month apart, was the alternate executor.  The testator’s second wife did in fact predecease him in 2015, with the result being that the residue of the testator’s estate was to go to the defendants under the 2014 Wills.

Testamentary Capacity

The plaintiff argued that the 2014 Wills were not valid on the basis that the testator did not have the capacity to make a Will at the time they were executed. Witnesses for the plaintiff gave evidence of the testator’s declining mental capacity over the years leading up to 2014, including their recounts of his forgetfulness, reclusiveness, and confusion. On the other hand, witnesses for the defendants gave conflicting accounts of a gentleman who may have slowed down a bit in his old age, but was still very much the man he had always been.

In ultimately finding the testator did not have testamentary capacity, Hinkson C.J. placed the most weight on:

• the contemporaneous notes and expert testimony of the testator’s family physician who had treated him over many years; and
• a series of emails from the deceased second wife (more on the emails below).

Hinkson C.J. preferred the above evidence to the inconsistent recollections of lay witnesses, the medical evidence of experts who had never met the testator, and the evidence of the drafting solicitor who did not make any attempt to assess capacity at the time the Wills were executed.

Undue Influence

While not necessary for the disposition of the case, Hinkson C.J. also found that the 2014 Wills were procured through the undue influence of the testator’s second wife. This finding was particularly interesting because all of the parties to the litigation were in agreement that the second wife showed nothing but love and affection for the testator throughout the course of their nearly 20 years of marriage.

Hinkson C.J. held that undue influence does not require any malicious intent or reprehensible actions by the influencer – it is enough that influence is exercised. In this case, as a result of the testator’s declining cognitive abilities and evidence that the testator’s second wife gave all of the instructions for the Wills, the burden of proof shifted to the defendants to show there was no undue influence. Having found the defendants were unable to discharge this burden, Hinkson C.J. held the Wills were procured through undue influence.  It is notable that the drafting solicitor testified that because he was drawing both the testator and his wife’s Wills at the same time, he did not interview the testator and his wife separately at any point.

Hearsay Evidence

Under the traditional rules of evidence, statements made out of court by a person who is not called as a witness at trial are inadmissible hearsay evidence. The plaintiff sought to introduce a series of emails sent by the testator’s second wife between 2012 and 2014, where she described the testator’s declining mental condition. Hearsay evidence may be admitted as an exception if it is both necessary and reliable.

In this case, it was necessary because the testator’s second wife was dead, and therefore could not testify, and reliable because the emails were written as contemporaneous observations where there were no issues with perception, memory, or credibility. Hinkson C.J. determined they could be admitted on that basis, and further that he would rely on them in his decision.