In McAndrew Estate (Re), 2020 ABQB 614, the Court of Queen's Bench of Alberta considered the validity of three wills made by a woman diagnosed with dementia.
Patricia McAndrew ("Patricia") died on November 15, 2018, leaving behind a modest estate. Patricia was pre-deceased by her husband. She had three children - Diane, Kevan, and Shelagh - and a brother, Orin.
Patricia had made several wills throughout her life. In 2005, she made a mirror will with her husband (the "2005 Will"), naming him as executor and Diane as alternate executor. This will gave $5,000 each to Kevan, Shelagh, and Diane's daughter Christine, and the residue of the estate to Diane.
As she got older, Patricia went for regular assessments at the Seniors Health Clinic. During one of these assessments in 2011, the doctor diagnosed Patricia with dementia and prescribed treatment. The doctor signed a declaration declaring Patricia incapable of making various decisions. Patricia moved from her condo into Trinity Lodge. She signed an Enduring Power of Attorney that immediately allowed Diane to act on her behalf.
Around this time, Diane began withdrawing money from Patricia's bank account to cover certain gambling debts. Orin reached out to a lawyer and made Diane pay back these amounts.
Later in 2011, Orin took Patricia to see a lawyer, Mr. Watson, to make a new will. This will (the "2011 Will") gave 30% of the residue to Orin, 35% to Diane, and 35% to Christine. Nothing was allocated to Kevan or Shelagh. When found after Patricia's death, this will had "Cancel/Void" written on each page, along with "Revived August 17, 2011" written in Diane's handwriting.
Diane claimed that Mr. Watson had told Patricia to write "Cancel/Void" on the will to revoke it. Mr. Watson denied ever telling a client to do this. On August 19, 2011, Patricia wrote a note to Mr. Watson saying that Diane was trying to replace the 2011 Will with the previous one.
Patricia prepared a third, holographic will dated July 24, 2012 (the "2012 Will"). This will, in Patricia's handwriting and signed by her, split the residue evenly between Orin, Diane, Kevan, Shelagh, and Christine. A week later, on July 31, 2012, Patricia had Mr. Watson prepare a new Enduring Power of Attorney for Patricia, naming Orin as attorney.
While Patricia continued living in Trinity Lodge, Diane moved into Patricia's condo. A few years later in 2017, Diane was charged with fraud relating to embezzlement of her employer and ordered to pay $43,000 in restitution. Patricia signed another mortgage against the condo and used the proceeds to help pay Diane's restitution.
Which will should be admitted to probate?
Orin took the position that the 2012 Will was valid. Diane disputes the validity of the 2011 and 2012 Wills on the grounds that Patricia lacked testamentary capacity and there was undue influence.
Devlin J. considered the Bank v. Goodfellow test for testamentary capacity. Capacity is a legal question, not a medical one. And cognitive impairment does not necessarily imply a lack of capacity.
Devlin J. found that there was clearly no issue with the 2005 Will. And despite Patricia's dementia diagnosis, the 2011 Will was also valid. Patricia was not in an advanced state of decline and Mr. Watson had been satisfied that she understood what she was doing.
Devlin J. found that it was Diane who had written "Cancel/Void" on the 2011 Will to try and preserve her larger share of the estate.
The 2012 Will was also valid. This will was properly executed, and while it did not expressly revoke prior wills, it did so by implication (i.e. the distribution of the estate was incompatible with the 2011 Will).
There was no evidence that Patricia's dementia had worsened when she prepared the 2012 Will. Mr. Watson had no concerns about capacity when preparing Patricia's new Enduring Power of Attorney only one week later, which spoke to her capacity.
Devlin J. took issue with several of Diane's arguments. Diane argued that the 2011 and 2012 Wills lacked testamentary sense, because they dramatically departed from the 2005 Will. But Devlin J. noted that, given Diane's gambling issues and questionable handling of Patricia's affairs, it was understandable that her share of the estate would decrease. Devlin J. also noted that Diane had no concerns about Patricia's capacity when it involved taking out a mortgage and helping to pay the restitution order.
To the extent that Orin influenced Patricia, not all influence is undue influence. Undue influence must amount to coercion. The fact that the 2012 Will gave Orin a smaller share of the estate than the 2011 Will speaks to the fact that Orin was not trying to manipulate Patricia for personal gain.
The 2012 Will was valid and admitted to probate.