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Case Brief - A disinherited granddaughter challenges two wills

In Balanko v. Logan De Chavez, [2019] A.J. No. 1505, 2019 ABQB 860, the Court of Queen's Bench of Alberta considered the case of a disinherited granddaughter who challenged two wills.

The Facts

Ms. Velma Logan ("Ms. Logan") died at age 96 in 2016. She had six adult children, including a daughter Bonnie who pre-deceased Ms. Logan in 2011. Bonnie and her husband, Al, had two daughters: Jody and Peggy.

Ms. Logan's Wills

During her life, Ms. Logan made a number of wills, including one in 2010, one in 2014, and one in 2016.

The 2010 will named Bonnie's husband Al the executor and split Ms. Logan's estate equally between her six children. The will specified that if any of Ms. Logan's children pre-deceased her, that child's share would go their own children.

Bonnie pre-deceased Ms. Logan in 2011. Ms. Logan made a new will in 2014 that named Al as executor, and divided her estate equally between her five surviving children. This will made no provisions for Bonnie's children, Jody and Peggy.

Ms. Logan made another will in 2016, naming a different daughter, Kathy, as executor. This will also divided Ms. Logan's estate equally between her five surviving children.

In other words, Jody and Peggy were excluded from Ms. Logan's 2014 and 2016 wills.

The Challenge

After Ms. Logan's death, Jody challenged the 2016 and 2014 wills. She applied under Alberta's Surrogate Rule 75(1)(b) to set aside the grant of probate and require proof in solemn form of the disputed will.

Jody asserted that Ms. Logan was manipulated into changing the 2010 will by Kathy (one of Ms. Logan's other children). Jody challenged the 2014 and 2016 wills on the grounds that these wills were prepared under suspicious circumstances. Among other things, Jody asserted that:

  • Ms. Logan had an agreement with Al that Jody and Peggy would share in her estate, as compensation for Al's help with financial advice
  • Jody's aunts were jealous and envious of Jody
  • Ms. Logan became blind in 2014 and was dependent on Kathy, who isolated and controlled her

Kathy and another of Ms. Logan's daughters denied these accusations. Supporting them, Ms. Logan's lawyer, Mr. Hargreaves, offered evidence that he assessed Ms. Logan's capacity when drafting the 2014 and 2016 wills and that he had no concerns. Ms. Logan's doctor, Dr. Gee, offered evidence that he had no concerns with Ms. Logan's capacity.


Legal Principles

A properly executed will is presumed to valid (Vout v. Hay, [1995] 2 SCR 876). This presumption can be rebutted by a challenger who has evidence of suspicious circumstances.

The Alberta Evidence Act states that in an action involving heirs and next of kin, an interested party's evidence must be "corroborated by other material evidence".

Application to the Facts

D.R. Mah J. applied these principles to the facts at hand and found that Jody's only evidence came from Jody. In other words, there was no other corroborating evidence to support Jody's assertions.

D.R. Mah J. found that Jody did not successfully rebut the presumption of substantive validity of the 2014 and 2016 wills.

The Bottom Line

A family member does not have an automatic right to a share in the estate. Someone coming to challenge a will must have evidence beyond their own assertions.

Patrick Hartford

Patrick Hartford

Patrick is the Founder of NoticeConnect.

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