In Tecter v. Reimer Estate, 2021 MBQB 133, the Manitoba Court of Queen's Bench considered a will challenge by two grandchildren who asserted that their grandmother's will was invalid due to a lack of testamentary capacity and suspicious circumstances.
Ruth Eleanor Reimer ("Ruth") died on August 29, 2018 at the age of 89. By all accounts she was a lively and strong-willed woman throughout her life. Ruth and her husband had two children, Avery and David. Avery had two children: Evan and Brant. And David had two children: Shane and Conrad.
At the time of Ruth's death, she was pre-deceased by her husband (2007) and her daughter Avery (2014), who had struggled with alcoholism and with whom Ruth had had an occasionally rocky relationship. Ruth sometimes experienced depression during her life, including after Avery's death.
Ruth's relationship with her son David was stable and close. They communicated daily and David regularly drove Ruth for errands and appointments.
Ruth had made a will in 1974 and a codicil in 2008, which indicated that her estate should split more or less equally between David and Avery. In 2017, after Avery's death, Ruth made a new will with a lawyer, naming David as executor (the "2017 Will"). This will gave a cottage and 60% of the estate to David, less a $400,000 loan he owed her. The grandchildren - Evan, Brant, Shane, and Conrad - were each given a 10% share of the residue of the estate.
Evan and Brant now challenge the validity of this will, claiming that:
- Ruth experienced cognitive decline and lacked capacity to make the 2017 Will
- The 2017 Will referred to Shane by the wrong name
- David appeared anxious at a meeting about administering Ruth's estate
- Ruth had made statements suggesting that Evan and Brant would receive Avery's half of Ruth's estate
Is Ruth's 2017 will valid?
When a will has been properly executed, testamentary capacity is presumed. If Evan and Brant can establish there were suspicious circumstances, then Ruth's estate must prove that Ruth had the requisite mental capacity. See Vout v. Hay,  2 SCR 876.
In this case, Ruth's will was prepared by a lawyer who took notes and had no concerns about her mental capacity. Misnaming Shane was a minor mistake. And while Ruth did suffer depression after Avery's death, resulting in mild difficulties with attention and concentration, any impairment was minimal and did not undermine her capacity to make a will (see Re Chrustie Estate, 2015 MBQB 25).
The fact that David had some influence over Ruth does not mean he had undue influence. Ruth's lawyer found her to be strong and confident. It was reasonable that Ruth would leave a large portion of her estate to someone she was close with, spoke to daily, and who assisted her in her later years.
If Ruth did promise to protect Evan and Brant's interests in the estate, this does not imply that they are entitled to what Avery would have received. Evan and Brant did in fact each receive a portion of the estate. There was evidence that Ruth had intended to leave Evan and Brant out of the 2017 Will entirely, and that David convinced her to include them.
Putting all of this together, Ruth's will is presumed valid and there were no suspicious circumstances that would rebut this presumption. Evan and Brant's application is dismissed.
To successfully challenge a will that has been validly executed, you need very strong evidence to back up claims of a lack of testamentary capacity, undue influence, or suspicious circumstances.