Brass Research: Lundy V. Lundy, 1895 Canlii 19 (SCC)

Brass Research
Additional Q:
Beneficiary being removed from the will due to any actions or of having punitive
damages assessed against them.
A:
1. Dependant support claims

https://welpartners.com/practiceareas/dependantsupportclaims
2. Dependant support claims- only way for the disinherited to obtain share in the
estate
https://www.wagnersidlofsky.com/dependants-support-cheat-sheet-a-primer-2
3. Dependant support arguments and case law (Webb; Lapierre) not appearing in
undue influence cases, because parties therein are already beneficiaries to the
estate.
4. Undue influence cases often in the context of will challenge, and not removal
from the will of a beneficiary-
https://www.wagnersidlofsky.com/capacity-assessments-undue-influence/
5. Lundy v. Lundy, 1895 CanLII 19 (SCC)
Beneficiary who committed a wrongdoing entitled to inherit, even after the

wrongdoing, if testator pursued with the intention to bequeath the estate to him
even after knowledge of the wrongdoing.
Court held: For it cannot be denied, I presume, that a will by any one in
favour of the person who killed him is good, if made in the interval
between the wound and the death. And, if she could have altered her will
and did not do it, she must have persevered in her intention to bequeath
her estate to her husband, though she knew his crime. So that the
appellants here cannot succeed except upon the assumption that she did
not have time to change her will after being wounded, and that, for there is
no evidence of it, I do not see why we should assume.
6. Inheritance; Slayer Rule-

https://welpartners.com/blog/2019/03/inheritance-the-slayer-rule-and-reaping-
the-proceeds-of-death/
Q: If a beneficiary to an estate also acted fraudulently or improperly to have the
deceased add subsequent codicils, can the court remove his entitlement to the original
will as a result of his actions?
A:
JURISPRUDENCE
1. Re Chrustie; Chrustie et al. v. Chrustie et al., 2015 MBQB 25
Facts: Daughters challenged father’s codicil on the ground that their father was unduly
influenced by their stepmother in its execution.
Issue: Whether the codicil is valid.
Held. Yes. Court held that father retained sufficient mental capacity to make a valid
codicil. Court was convinced by the testimony of the witnesses who were present when
the codicil was signed that the testator knew and approved of the contents of the will.
Doctrine: When the validity of a testamentary document is challenged, the propounder

of the document has a legal burden with respect to due execution, knowledge and
approval, and testamentary capacity. Upon proof that the document was duly executed
with the requisite formalities after having been read over to or by the testator who
appeared to understand it, it will generally be presumed the testator knew and approved
the contents and had the necessary testamentary capacity. Where suspicious
circumstances are present, then the presumption is spent and the propounder of the
document resumes the legal burden of proving knowledge and approval. If the
suspicious circumstances relate to the mental capacity, the propounder also reassumes
the legal burden of establishing testamentary capacity. These must both be proved in
accordance with the civil standard. The burden of proof with respect to fraud and undue
influence rests upon those attacking the testamentary document.
2. Taylor-Reid v. Taylor, 2016 ONSC 4751
Facts: Plaintiff seeks a declaration that the Last Will and Testament of his father is
invalid. She claims that the changes were made as a result of the second wife’s undue
influence. In support of the allegation, Plaintiff relied on unsubstantiated accusations
that the second wife threatened to leave his father or divorce him if he did not give the
second wife half interest in the home and bank accounts.
Issue: Whether or not there was undue influence.
Held: No. Plaintiff failed to discharge the burden of establishing the existence of undue
influence. For the conduct to amount to testamentary undue influence, it must amount to
coercion, forcing the Will-maker to make a Will containing gifts that he or she would
otherwise not make.
The Ontario Court of Appeal, citing Wingrove v. Wingrove (1886) L.R. 11 P.D. 81,

highlighted a requirement for a plaintiff to prove causation in addition to coercion.
In Anderson v. Walkey, citing Wingrove, the court stated:

There remains…another general observation that I must make, and it is this, that
it is not sufficient to establish that a person has the power unduly to overbear the
will of the testator. It is necessary also to prove that in the particular case that
power was exercised, and that it was by means of the exercise of that power that
the will, such as it is, has been produced.[7]

Plaintiff makes no allegation of coercion and/or influence that would amount to undue
influence. Her claim of undue influence rests solely on the fact that second wife
threatened “whether spoken or implicitly” that she would leave or divorce his father if
she did not sign the Last Will and Testament of February 18, 2011 or revert the
beneficiary designation forms back to Shirley on February 3, 2011 and July 28, 2011.

Second wife further relies upon s. 13 of the Evidence Act, R.S.O. 1990, c.E.23 which
provides:

Actions by or against heirs, etc. - In an action by or against the heirs, next of kin,
executors, administrators or assigns of a deceased person, an opposite or
interested party shall not obtain a verdict, judgment or decision on his or her own
evidence in respect of any matter occurring before the death of the deceased
person, unless such evidence is corroborated by some other material evidence.

Evidence Act applies in this case and that Plaintiff’s evidence is not corroborated by
“other material evidence” in respect of the issue of undue influence.
3. Poitras Estate v. Poitras, 2016 ONSC 5049
Facts: This application is brought by a stepmother against four of her five stepchildren in
relation to the estate of the husband of the applicant. She claims that less than two
months before he died, the respondents improperly influenced the deceased to change
his 2010 will to her disadvantage.
Issue: Whether or not there are suspicious circumstances
Held: Yes. On a will challenge the applicable principles were succinctly summarized by
Cullity, J. in Scott v. Cousins, [2001] O.J. No. 19 (S.C.J.) as follows:
It is notorious that the location of the burden of proof is of unusual importance in

cases of contested wills. Evidence of a deceased person’s knowledge and
approval, testamentary capacity or capitulation to undue influence is often
indeterminate where it is not entirely lacking. Even on the issue of due execution,
there may be an absence of witnesses available to testify. For this reason, past
decisions are replete with references to the burden of proof on particular issues
and to presumptions that will arise if certain facts are proven.
xxx
The principles that I believe are established by the decision of the Supreme Court, and
that are relevant here, can be stated as follows:
1. The person propounding the will has the legal burden of proof with respect
to due execution, knowledge and approval and testamentary capacity.
2. A person opposing probate has the legal burden of proving undue
influence.
3. The standard of proof on each of the above issues is the civil standard of
proof on a balance of probabilities.
4. In attempting to discharge the burden of proof of knowledge and approval
and testamentary capacity, the propounder of the will is aided by a rebuttable
presumption.
Upon proof that the will was duly executed with the requisite formalities, after
having been read over to or by a testator who appeared to understand it, it will
generally be presumed that the testator knew and approved of the contents and
had the necessary testamentary capacity.
5. This presumption “simply casts an evidential burden on those attacking the
will.”
6. The evidential burden can be satisfied by introducing evidence of
suspicious circumstances – namely, “evidence which, if accepted, would tend to
negative knowledge and approval or testamentary capacity. In this event, the
legal burden reverts to the propounder.”
7. The existence of suspicious circumstances does not impose a higher
standard of proof on the propounder of the will than the civil standard of proof on
a balance of probabilities. However, the extent of the proof required is
proportionate to the gravity of the suspicion.
8. A well-grounded suspicion of undue influence will not, per se, discharge
the burden of proving undue influence on those challenging the will:
It has been authoritatively established that suspicious circumstances, even though they
may raise a suspicion concerning the presence of fraud or undue influence, do no more
than rebut the presumption to which I have referred. This requires the propounder of the
will to prove knowledge and approval and testamentary capacity. The burden of proof
with respect and fraud and undue influence remains with those attacking the will.
On suspicious circumstances: The factors that I view as constituting suspicious

circumstances on the issue of undue influence are the timing and circumstances
surrounding the 2013 will, the change in ownership of the investments and the new
beneficiary designation for the RIF when nothing had changed in Gilles’ relationship
with Pamella, and all of which occurred without explanation by Gilles or discussion with
Pamella. These changes altered a long-established status quo. In addition, it was Gilles’
children who made the selection of the new lawyer in place of the lawyer who prepared
the 2010 will. They also made the appointment. Added to this was Dany’s suggestion
that Pamella, rather than the estate, should pay the funeral costs. These events warrant
raising a caution flag.
On undue influence: A more recent statement of the meaning of undue influence is

found in the decision of Cullity J. in Banton v. Banton, 1998 CanLii 14926 (ONSC) at
para. 89:
A testamentary disposition will not be set aside on the ground of undue influence
unless it is established on the balance of probabilities that the influence imposed
by some other person on the deceased was so great and overpowering that the
document reflects the will of the former and not that of the deceased. In such a
case, it does not represent the testamentary wishes of the testator and is no
more effective than if he or she simply delegated his will-making power to the
other person.
There is sufficient evidence to support a reasonable inference that some of Gilles’

children attempted to influence Gilles regarding how he should divide his estate
between his wife and his children. The more difficult question is whether any such
pressure amounted to coercion that overpowered Gilles’ true intentions.
Court ruled that the evidence falls short of establishing that the pressure exerted by
Gilles’ children was so great that the 2013 will ought to be set aside.
4. Green v Oliver (Executor of the Estate of Margaret Rosebud Oliver), 2020

SKQB 211
Doctrine: Standard of proof and test to have a Will proven in solemn form—
The Court has, over time, frequently considered this issue. A recent decision of Carlson
v Carlson Estate 2018 SKQB 196, 39 ETR (4th) 308 [Carlson], provides a helpful
summary of both the standard of proof and the test to be applied, thus:
In Bachman [Bachman v Scheidt Estate, 2016 SKCA 150, [2017] 2 WWR 301], the test

was described once more in these terms:
In order to have a trial to prove the will in solemn form, the applicant must, at the
first hearing, establish a genuine issue to be tried. To do this, he or she must
point to some evidence which, if accepted at trial, would tend to negative
testamentary capacity or support a finding of undue influence. The applicant
must do more than simply suggest an irregularity or point to evidence on
peripheral points. Rather, probative evidence showing a genuine issue must be
adduced. Once this hurdle is cleared, the propounder of the will may attempt to
answer the challenge by showing unconditional and uncontroverted evidence
that affirms that the maker of the will had the necessary testamentary capacity
and/or was not unduly influenced. Although the Chambers judge may consider
evidence from both parties, it is not his or her job to weigh conflicting evidence
and make findings of credibility. If contradictory evidence is adduced, especially
where findings of credibility will have to be made, the only option for the
Chambers judge is to direct a trial.
5. Calbick v. Warne, 2009 BCSC 1222
Doctrine: In this case, the executor and sister (a beneficiary) was alleged to have
exerted undue influence, thus Petitioner sought the following court orders:
1. An injunction pursuant to s. 39 of the Law and Equity Act restraining the
executor from dealing with any remaining estate assets except by consent or pursuant
to a court order.
2. Removal of the executor.
3. Replacement of the executor with an independent person who has provided a
letter indicating that he is willing to accept that responsibility.
4. An accounting for all the assets and liabilities, and expenditure belonging to the
estate since the passing of the testator.
5. The return of improperly converted items, or equivalent amounts, which were
converted before death, including the fraudulently converted property of the grandfather.
6. Repayment of improperly converted items, or equivalent amounts, which
occurred after death.
7. Damages against both the sister and the executor for:
(a) stress;
(b) aggravated damages;
(c) breach of fiduciary duty;
(d) an equivalent value for assets not able to be returned.
However, court dismissed the petitioner’s claim. No undue influence found.
WEBSITES
1. https://www.canadianlawyermag.com/practice-areas/litigation/ontario-appeal-
court-provides-guidance-on-undue-influence-doctrines/275118
2. https://welpartners.com/resources/WEL-Paper-Undue-Influence-LESA-2017.pdf
(with many case laws on undue influence; paper published by WELPartners in
2017)
3. https://www.millerthomson.com/en/publications/communiques-and-
updates/wealth-matters/august-2018-wealth/recognizing-and-understanding-
undue-influence-in-estate-planning/?
utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-
integration
(on undue influence)

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Brass Research

1. Dependant support claims

5. Lundy v. Lundy, 1895 CanLII 19 (SCC)

Beneficiary who committed a wrongdoing entitled to inherit, even after the

6. Inheritance; Slayer Rule-

1. Re Chrustie; Chrustie et al. v. Chrustie et al., 2015 MBQB 25

Issue: Whether the codicil is valid.

Doctrine: When the validity of a testamentary document is challenged, the propounder

2. Taylor-Reid v. Taylor, 2016 ONSC 4751

Issue: Whether or not there was undue influence.

The Ontario Court of Appeal, citing Wingrove v. Wingrove (1886) L.R. 11 P.D. 81,

3. Poitras Estate v. Poitras, 2016 ONSC 5049

Issue: Whether or not there are suspicious circumstances

It is notorious that the location of the burden of proof is of unusual importance in

On suspicious circumstances: The factors that I view as constituting suspicious

On undue influence: A more recent statement of the meaning of undue influence is

There is sufficient evidence to support a reasonable inference that some of Gilles’

4. Green v Oliver (Executor of the Estate of Margaret Rosebud Oliver), 2020

In Bachman [Bachman v Scheidt Estate, 2016 SKCA 150, [2017] 2 WWR 301], the test

5. Calbick v. Warne, 2009 BCSC 1222

However, court dismissed the petitioner’s claim. No undue influence found.

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