Wills and Estates: Incapacity and Undue Influence

By: Gabriel Di Genova

An 86-year-old woman in poor physical health left her home to live with her nephews and disinherited her spouse of 39 years. Prior to her death, while in hospital, the woman instructed a lawyer to institute proceedings for separation from bed and board, and a notary to prepare a new will. The new will was notarised in favour of the nephews. The events in question occurred over a span of only four weeks.

Despite the unexplained change, in Brusenbauch c. Young, 2019 QCCA 914 (CanLII), upon reviewing the evidentiary standards a litigant must meet when attempting to set aside a will for reasons of incapacity and / or undue influence, the Court of Appeal refused to invalidate the latter will.

The Court of Appeal considers whether the first instance Court committed a palpable, manifest and overriding error in fact and law in concluding that the decedent :

1) was not the object of undue influence; and

2) possessed the requisite capacity to comprehend the nature and parameters of the latter will, namely, via a refusal to shift the burden of proof of capacity once prima facie evidence of incapacity was adduced at trial.

While the Court of Appeal affirmed the trial judge’s decision, it also clarified the standard of proof required for both reasons submitted by plaintiff at trial to justify invalidating the latter will.

With regard to undue influence, the Court of Appeal explains that any allegation of testamentary undue influence (commonly identified as “captation” in Quebec civil law), are necessarily highly factual:

[16] The rule is that which applies in all civil matters, unless the law provides otherwise: the party who alleges undue influence (“captation”), which implies fraud (“dol”) and consequently, a defect in consent, must establish both, as well as causation, on a balance of probabilities, according to articles 2803 and 2804 C.C.Q.

The Court of Appeal states that the same evidentiary burden applies to matters of alleged incapacity, however, it clarifies that the tests at common law and civil law are different. Whereas at Common law the onus is for the intended beneficiary of a will to demonstrate validity, in Quebec civil law, the factual presumption is that the testator is capable and the will valid:

[24] […]
Il se peut que le langage et la méthode d’analyse employée dans plusieurs jugements québécois témoignent de l’influence parfois inconsciente, de certains arrêts de la Cour suprême ou du Conseil privé, qui étudiaient la validité d’un testament dans des affaires relevant de la common law, à partir d’un fondement différent, c’est-à-dire de l’obligation, pour la partie qui réclamait le bénéfice d’un testament, d’en soutenir et d’en démontrer la validité. Le droit testamentaire, dans la province de Québec, partait d’un principe opposé, qui exprimait une présomption de fait favorable à la capacité et à la validité de l’acte. (emphasis added)

However curious the circumstances or outcome of a change in heirs, the Court of Appeal reaffirms the principle that the wishes of the testator must be respected. Having failed to establish that the decedent had been unduly influenced by the nephews or that she was inapt at the moment of signing, the plaintiff was unable to have the more recent will invalidated by the Court.