Judd Blitt, a senior member of our Estate Litigation practice group, was recently successful in an application to prove the validity of a holographic will. The issues were whether the deceased possessed testamentary capacity at the time the holographic will was made and whether the deceased’s brother exercised undue influence over the deceased to create the document.
Acting for the deceased’s brother and two of her three children, Mr. Blitt successfully argued that, despite having been diagnosed with early-stage vascular dementia and a physician having executed a Declaration of Incapacity, the deceased had the requisite testamentary capacity at the time she made a hand-written will that had the effect of revoking and replacing an earlier will that heavily favoured one daughter who contested it.
The Honourable Justice N. Devlin confirmed that medical diagnoses are not determinative of testamentary capacity and that, in many cases, the evidence of lay witnesses such as family members should be preferred over medical professionals, who may only have observed the testator in limited circumstances and for narrow purposes.
The decision confirms the legal test for assessing testamentary capacity and the respective evidentiary burdens and standards of proof. The facts underlying these cases are often subtle and distorted by the subjective views of the competing parties. This decision underscores the importance credibility can play in the resolution of issues related to capacity and undue influence.
This decision also illustrates how a breakdown in family relationships can have significant and long-lasting consequences. As Devlin J. poetically states in the decision: “On this familiar landscape of familial discord, the contest of wills is joined”. Estate disputes can often be avoided by addressing the breakdown of a family relationship early on. Janet Russell, QC of SVR offers family mediation that can help identify and address areas of conflict and distrust among family members before they turn into costly and emotional disputes over an estate.
SVR is proud of the result we were able to achieve for our clients. If you are involved in or anticipate a contentious estate matter, reach out to Judd or any other member of our team for sound advice and preeminent representation.
The full text of the decision in McAndrew Estate (Re), 2020 ABQB 614 is available here.