November is Make a Will Month, and this blog is a reminder that if you make a Will, make it clear so that your intentions are honoured after your death. Ambiguous Wills invite challenges and litigation!
Recently, the Supreme Court of Canada in Wilson v Adams Estate (Court File No. 39233) dismissed the application for leave to appeal of Mr. Wilson, who claimed that he had been promised the testator’s entire business operation upon her death. But the Will did not say so. The Saskatchewan Court of Appeal (2020 SKCA 38), held that he did not even have standing to challenge the Will. This and litigation (including applications for injunctive relief) could have been avoided had the testator clearly identified the beneficiaries of her estate.
Who has standing to challenge a Will?
The testator, Ms. Adams, died in 2016 at the age of 93. She had never married and had no children. She ran a substantial cattle operation and, beginning in 1975, her neighbour and friend Mr. Wilson started working on the ranch on a full-time basis.
He asserted that he had an agreement with Ms. Adams with two key terms:
(1) she would pay him $1,000 per month to help cover his expenses (gas, use of his truck and tools); and
(2) upon her death, he would inherit the entire ranching operation – all land, cattle, and equipment.
Mr. Wilson stated that he would never have agreed to work on the ranch for $1,000 per month without the agreement that he would later inherit the entire operation. He alleged that Ms. Adams had told him that their agreement had been recorded in writing, but no such document was ever found.
In 2011, Ms. Adams made the Will at issue and appointed Mr. Staples, a friend and neighbour, as executor. The Will provisions included that:
- The testator had not made a final decision on the disposition of all her property, but her executor was to make those decisions, guided by her instructions in the Will; and
- She gave the executor wide discretion to distribute part of her estate to those persons who had been “trustworthy and loyal and helpful” to her in her lifetime, and she made it clear that the executor knew who those persons were and was to “use his best judgment” to ensure that some portion of her estate was given to those persons “as he deems fit”.
Mr. Wilson was not mentioned in the Will and there was no reference to their supposed agreement. Letters probate were granted to the executor in March, 2017.
In September, 2017, Mr. Wilson brought an action to enforce the alleged agreement or, in the alternative, for an order that the ranching operation was subject to a constructive trust in his favour. He filed a Certificate of Pending Litigation (“CPL”) on title to the ranch. The executor sought an order vacating the CPL.
In July, 2018, Mr. Wilson countered with an application to have the Will declared invalid and to revoke the letters probate grant or, in the alternative to have it proven in solemn form on the issue of whether Ms. Adams had capacity to make the Will in aid of revoking probate. This latter application was the subject of the appeal. The action was stayed pending the outcome of this appeal. See Wilson v Staples, 2018 SKQB 245
Decision of the motion judge
The motion judge (2018 SKQB 245) considered whether Mr. Wilson had standing to challenge the Will and determined that he had the burden of proof to show it.
Pursuant to Saskatchewan Rules 16-46 and 16-47 (concerning the Probate and Administration of Estates), “a person who is or may be interested” in the estate of a deceased person may give notice for the Will to be proven in solemn form and “a person interested in an estate” who seeks to revoke a grant of probate may bring an application. The motion judge found that the burden of showing that a person “may be interested” requires only a demonstration of a “possible” interest.
Mr. Wilson was not “a person interested” in the estate; he was not named as an executor or beneficiary under the Will, nor any previous Will or other valid or potentially valid testamentary instrument. Nor was he ever a dependant of Ms. Adams. He could not even show that he was a potential creditor entitled to apply for letters of administration in the event of an intestacy because Ms. Adams had a brother who could make such application ahead of any creditor. Therefore, he would not be entitled to any portion of the estate in these capacities. However, Mr. Wilson had presented sufficient evidence that he was a person “who may be interested” as an individual who was “trustworthy and loyal and helpful” during Ms. Adams’s lifetime.
Therefore, he had standing to bring the application to have the Will proved in solemn form.
Decision of the Saskatchewan Court of Appeal
The Saskatchewan Court of Appeal overturned the decision of the motion judge and found that Mr. Wilson had no standing.
Since Mr. Wilson was not a person “with an interest in the estate”, his standing hinged on whether he “may be a person who is interested in the estate” as a result of the executor’s discretion to distribute a portion of the estate to persons who had been “trustworthy and loyal and helpful” to Ms. Adams during her lifetime.
The Court of Appeal found that the test for granting standing to challenge a Will was consistent across Canada, and with earlier English court practice. In most cases, an interest in an estate arises from an entitlement to share in the estate either by virtue of a Will (or other testamentary document) or by operation of law. The policy rationale for such a rule is to prevent interference with the proper functioning of the administration of the estate and also cost and inconvenience to the executor.
Therefore, persons who “may have an interest” in the estate must “have some connection to the estate and the devolution of property”. Creditors have a derivative interest arising out of the judgment debt, but not a direct interest in the estate. The Court of Appeal acknowledged that the use of the word “may” is unique to Saskatchewan law, but found that this did not change the categories of persons with standing to challenge a Will. The question is whether the person “has sufficient stake in the outcome to invoke the judicial process” (quoting Professor Peter Hogg). Historically, this has required a financial or legal interest of some sort (such as a statutory claim as a dependent, for example). Mr. Wilson had neither.
The Court of Appeal found that there was a “good measure of disingenuousness and circularity in [Mr. Wilson’s] claim” because he asserted that he was a potential beneficiary under the Will as a loyal and trustworthy person, subject to the discretion of the executor, and yet the relief he sought in having probate revoked was to create an intestacy which would give him no rights.
In addition, even if Mr. Wilson were to succeed in the alternative relief he sought to have the Will proven in solemn form (and thereby validated) his entitlement still depended upon the discretion of the executor, which meant that giving him standing (or not) had no effect on his legal or financial interests.
Implications in Ontario
The Saskatchewan Court of Appeal relied upon Ontario cases, which have taken a similar view of the standing of a person to contest a Will under the Ontario Rules of Civil Procedure:
- Korsten v Lovett (2002), 48 ETR (2d) 41 (ONSC), where the applicant adduced evidence that she had a contingent beneficial interest in the event of an intestacy;
- McLaughlin v McLaughlin, 2015 ONSC 3491 at para. 28, where the applicant was a beneficiary named under one of the Wills, but not the others, and no determination had yet been made as to which was the last Will of the deceased; and
- Smith v Vance (1997), 12 C.P.C. (4th) 391 (Ont. Div. Ct.), where the applicant was required to do more than simply assert an interest but was required to present sufficient evidence of a genuine interest. Rule 75 of the Ontario Rules of Civil, generally, provides standing to any person “appearing to have a financial interest in an estate”.
The Court found that even though those words do not appear in the Saskatchewan Rules, a financial interest is required.
Therefore, the same result would likely be obtained in an Ontario court on these facts.
The cases are clear that the applicant seeking standing must do more than advance a scenario under which he/she would have a financial interest; there must be sufficient evidence adduced to support it. And the interest must be such that the applicant seeking standing has a stake in the outcome of the judicial proceeding. In this case, the applicant did not, because his entitlement under the Will ultimately depended upon the exercise of discretion of the executor. If the Will was not valid, he had no entitlement under an intestacy.
