As the old warning goes, “There’s many a slip ‘twixt cup and lip”. In estate litigation, good guidance is essential, to avoid that ‘slip’. This is particularly so, when challenging a Will.

Contesting a Will is far more common than successfully challenging a Will.

There are a number of reasons for that:

1). Perceptions among family members and/or social pressures may prevent some properly founded claims from carrying forward to a conclusion.

2). When a claim is filed, it is settled by the parties, or partially settled by removing some issues from the table. This often occurs after disclosure of evidence and exchange of the parties’ information but before trial. This is often how claims resolve.

3). Challenging a Will is a costly, risky endeavour. Obtaining early advice from an experienced estate litigation lawyer may avoid a claimant taking unwarranted risks, or provide key strategic advice to executors and beneficiaries responding to a claim.

A stitch in time saves nine. Whether you are the claimant, or the executor responding to an estate claim, early legal advice may prevent wasted time and expensive steps.

There are important legal considerations on which a claimant or an executor should be advised, including:

• The legal standards (established case law and customary principles) that apply to Will challenges or claims against estates.
• The high evidentiary standard that is required to be met by the claimant or the executor, which is unique to estate claims.
• The specific nature of the evidence that the courts require, to rule on an estate claim or Will challenge. The claimant generally bears the overall onus to prove their claim.
• The penalties that courts issue against claimants who are not successful in their claims. Such consequences are higher for certain types of allegations than others.
• The courts are increasingly aware of the number of claims being filed against estates, and Will challenges being brought. They have reinforced the ability to dismiss such claims at a very early stage, where they are not proven adequately.

To highlight these principles, the Alberta Court of Appeal has recently reinforced these considerations, in its April 12, 2017 decision in Beimler v Kendall.That case involved a Will challenge, on two common fronts:

• Allegations that the testator making the Will lacked testamentary capacity; and,
• Allegations that the testator was unduly influenced by someone to change his Will (that ‘someone’ is usually the new beneficiary, whose entitlement is challenged by the claimant).

The claimants in the Beimler case were the testator’s (deceased’s) common law wife, and his informally adopted son.

Following a series of Wills that named them as beneficiaries of his estate, he changed his Will to remove them as beneficiaries, and named his sister as his sole beneficiary. He was 83 at the time of his newest Will, and in ill health (in hospital).

The sort of evidence advanced by the claimants in Beimler is common. It is also commonly unsuccessful. Their claim included allegations that:

• The sister was manipulating an elderly man to change his Will.
• The testator was under his sister’s power, having first granted a Power of Attorney to her and, in turn, this influenced him to change his Will to give her his estate.
• The beneficiary had care for the testator’s medical care (i.e innuendo of influence).
• a conspiracy by the beneficiary to change the Will.
• The testator allegedly had dementia and “lacked capacity” and was “slipping mentally” (sweeping statements, without specificity).

Equally common in such claims, the executor and beneficiary responded with evidence that included affidavits from relatives confirming the testator’s mental abilities, and an affidavit from the lawyer who prepared the Will at issue, confirming that:

• He assessed the testator’s testamentary capacity from a lay standpoint (checklist of observed behaviour relevant to the legal test for testamentary capacity).
• He ensured that there was no influence by anyone on the testator for any of the three occasions on which he met with the testator before the testator signed his Will.
• He verified that the testator’s wishes were his own, and specifically that they were not those of his sister (the new beneficiary responding to the challenge).

The Court of Appeal found that the claimants’ evidence was largely self-serving, and not corroborated (which is a common shortcoming in estate claims).

Although the medical evidence showed diminishing cognitive abilities, it fell far short of supporting the claimants’ allegations that the testator lacked task-specific mental capacity to make a Will (often expert evidence is required, together with very significant lay evidence to lay a factual foundation for such expert opinion evidence).

The Court of Appeal upheld the lower judge’s dismissal of the Will challenge at an early stage, and without a trial. The claimants simply did not advance sufficient, specific, corroborated evidence to support their allegations. Mere suspicion by disappointed prior beneficiaries is not enough.

This is a common end for such attempts, where the evidence or argument is not robust and detailed enough to support the claim. The courts strongly censure such unsuccessful attempts that are advanced to a hearing that uses scarce publicly funded judicial resources.

Claimants are wise to avoid this sort of scene, and executors are best equipped to respond to it, by obtaining legal advice at an early stage.

The unsuccessful party is often left paying the tab, and the penalty can be quite high indeed…