By Jacy J. Wingson & Sarah Weber
The recent Supreme Court of British Columbia decision provides clarification as to when the court will find a will is invalid. The case of Jung Estate v Jung Estate, 2022 BCSC 1298 (“Jung Estate”), involves an elderly mother who had close relationships with both of her adult sons. Justice Blake found the mother’s will to be invalid as a result of suspicious circumstances at the time the will was made, the mother’s lack of testamentary capacity and the mother’s lack of knowledge and approval of the contents of her will. The overarching issue in the case of Jung Estate, was whether an elderly mother’s will was valid (spoiler: it wasn’t).
Rose Jung (“Ms. Jung”), a widow, died at the age of 88 due to natural causes. Her surviving beneficiaries were her two sons, Jerry, age 67; and Steven, age 62. Steven passed away on January 6, 2021, so his wife, Wendy Lee (“Ms. Lee”) took over the claim as the executor of Steven’s estate.
The primary asset of Ms. Jung’s estate was her Vancouver home. Jerry moved into the Vancouver home shortly before Ms. Jung’s death and lived there until the trial. All witnesses described Ms. Jung as a passive and non-confrontational woman.
Ms. Jung had been diagnosed with dementia in April 2017. She signed a will on July 17, 2017 (the “Will”), one month before she passed away on August 16, 2017. The Will left Ms. Jung’s Vancouver home to Jerry and the residue (the deceased’s leftover assets after the payment of debts and estate expenses) to Steven. The Will replaced Ms. Jung’s former will from 2001 that divided her estate equally to Jerry and Steven.
The signing of the Will met the formal requirements under the relevant statute for a Will to be formally valid (Wills, Estates and Succession Act, SBC 2009, c 13, at s. 37 (“WESA”)), those requirements being that the will is:
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as the will-maker’s signature, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
Ms. Lee argues Ms. Jung’s Will should be invalid because:
- There were suspicious circumstances surrounding the Will’s creation and execution;
- Ms. Jung did not have the required testamentary capacity to make the Will;
- Ms. Jung did not know and appreciate the contents of the Will; and
- Ms. Jung was unduly influenced by her son, Jerry, in the making of the Will.
Jerry disputed these claims and asked for the Court to declare the Will valid.
Credibility and Reliability
In the Court’s assessment of witness’ evidence, it must assess the credibility and reliability of such evidence. Credibility relates to honesty. In a credibility assessment, the Court will presume truthfulness. Reliability relates to accuracy. Factors to be considered when assessing credibility and reliability:
- the truthfulness of a witness’ testimony based upon the veracity or sincerity of a witness;
- the accuracy of the evidence;
- the ability and opportunity to observe events;
- the firmness of their memory, the ability to resist the influence of interest to modify their recollection;
- the unreasonableness, impossibility or unlikeliness of a witness’ testimony;
- the potential motive for a witness to lie;
- the witness’ demeanour; and
- the consistency of the evidence with the probabilities affecting the case as a whole and shown to be in existence at the time.
Bradshaw v Stenner, 2010 BCSC 1398 at para 186, aff’d 2012 BCCA 296
The Court in Jung Estate found that Jerry’s evidence was largely unreliable and must be examined carefully. On the other hand, Ms. Lee’s and Steven’s evidence was found to be reliable and credible, which was in part due to their evidence being largely corroborated by contemporaneous emails.
The first step in assessing circumstances surrounding the creation and execution of a will is to ensure the will meets the formal requirements in accordance with s. 37 of WESA, namely, that the will was signed by the testator in the presence of two witnesses, who also signed the will.The court found Ms. Jung’s Will was executed in accordance with the requirements of s. 37 of WESA and was therefore formally valid.
When a will has been executed in accordance with the formal requirements, the person attempting to validate the will has the benefit of the presumption that the will-maker had the required knowledge and approval, and testamentary capacity to sign and execute the will (Vout v. Hay, 1995 CanLII 105 (SCC), at para 26 (“Vout”)). However, when suspicious circumstances are shown to be present, this presumption is spent. The standard of proof for establishing suspicious circumstances is that of a balance of probabilities. Suspicious circumstances must raise what has been described as a specific and focused suspicion, a general suspicion is not enough. Suspicions must be “well grounded” and will generally relate to circumstances:
(1) surrounding the preparation and execution of the will,
(2) calling into question the capacity of the will-maker, or
(3) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud.
Leung v Chang, 2013 BCSC 976 at para 31, aff’d 2014 BCCA 28; and Vout at para 25.
The Court found the following suspicious circumstances surrounding the creation of Ms. Jung’s Will:
- Jerry signing Ms. Jung’s cheques;
- Steven searched through Ms. Jung’s closet for her purse and cheque book;
- Numerous arguments between Ms. Jung and her sons, and between the sons themselves;
- A report from a social worker reporting Ms. Jung may be financially manipulated by Jerry; and
- Jerry’s attempts to take Ms. Jung’s Power of Attorney that Steven held.
Testamentary capacity is a legal concept. It does not equate to mental capacity and cannot be granted merely by a medical assessment. Justice Blake restated the long-established test for testamentary capacity which requires the will-maker be sufficiently clear in their understanding and memory to know, on their own:
- the nature and extent of their property;
- the persons who are the natural objects of their bounty;
- the testamentary provisions they are making; and
- they must be capable of appreciating those factors in relation to each other and forming an orderly desire as to the disposition of their property
See: Schwartz v. Schwartz (1970), 1970 CanLII 32 (ON CA); Banks v Goodfellow (1870); Vout; Laszlo v Lawton, 2013 BCSC 305 at para. 188; and Halliday v Halliday Estate, 2019 BCSC 554 at para. 26 (“Halliday”).
These are commonly referred to as the Banks v Goodfellow factors (dating back to the 19th century). Determining whether a will-maker possessed testamentary capacity at the necessary times is a question of fact, to be determined from all of the circumstances. Mental capacity can fluctuate, what is important is that the will-maker had the necessary testamentary capacity at the relevant time, i.e. when providing instructions for the will or when signing the will. In assessing testamentary capacity, the evidence of the drafting solicitor, who took instructions and prepared the will, is often given considerable weight, particularly where that person is an experienced wills and estates lawyer (Benekritis v. Gilbert Estate,  B.C.J. No. 171at paras. 41 – 43). Cognitive deterioration does not necessarily mean the will-maker is no longer capable of possessing testamentary capacity (Bull Estate v. Bull, 2015 BCSC 136 at para. 114).
Although there was strong evidence both for and against testamentary capacity, the Court held that Jerry had not proven, on a balance of probabilities, that Ms. Jung had testamentary capacity at the time she made the Will. The finding was largely due to Ms. Jung not having sufficient understanding of the value of her assets and the consequences of giving Jerry the Vancouver home and Steven the residue of the estate, which effectively disinherited Steven and left everything to Jerry. This distribution went against Ms. Jung’s wishes regarding the distribution of her estate at the time she provided instructions for the Will to the drafting lawyer, which was ¾ of the estate to Jerry and ¼ of the estate to Steven.
Knowledge and Approval of Contents
If it is proven that the will-maker doesn’t have the required testamentary capacity to sign and execute the will, it is unnecessary to determine whether they knew and approved of the will’s contents.
However, knowledge and approval of the contents of a will is not the same as testamentary capacity. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve the choices that have already been made. Reasoning for the twin requirements of knowledge and approval, and testamentary capacity ensures that the will is the product of the conscious intention of a sound mind. Knowledge and approval is the “conscious intention” in that formula. The knowledge and approval requirement does require the will-maker to be aware of the magnitude of their estate and they must appreciate the effect of the disposition of their estate (Geluch v. Geluch Estate, 2019 BCSC 2203 at para. 127; citing Russell v. Fraser (1980), 1980 CanLII 737 (BC CA), 118 D.L.R. (3d) 733 (B.C.C.A.) at para. 12).
The Court held that Ms. Jung was not able to appreciate the impact of her gift of the Vancouver home to Jerry and the rest of her estate to Steven because it effectively left nothing to Steven, which went against her expressed wishes regarding the distribution of her estate.
If it is found the will-maker lacks testamentary capacity to execute the will and the will-maker does not have the necessary knowledge and approval of its contents, it is unnecessary to determine whether there was undue influence.
However, Justice Blake held that to establish undue influence, the party claiming undue influence must claim that the will resulted from another person being in a position where the potential for dependence or domination of the will-maker was present, and that they used that position to unduly influence the will-maker to make the will. If they are able to establish that the other person was in a position where the potential for dependence or domination of the will-maker was present, then the party seeking to defend the will has the onus to establish that undue influence was not exercised over the will-maker with respect to the will. To give rise to the presumption of undue influence, it is sufficient to establish that the will-maker was reliant on a person, and that person exercised dominance over their will through persuasive influence (Halliday). If there is evidence that the will-maker was dependent, and that the person upon whom they were dependent exercised dominance, legal advice may not be sufficient to overcome concerns about undue influence (Kozak Estate (Re), 2018 ABQB 185 at para. 16).
Jerry was in a position where dependence or domination could have been present with Ms. Jung. Ms. Jung was passive, non-confrontational, dependent on her sons and susceptible to financial abuse by Jerry. However, Jerry arranged for Ms. Jung to meet with the Will drafting lawyer alone; respected the lawyer’s instructions, including that an independent medical assessment of Ms. Jung should occur, and that Jerry could not attend Ms. Jung’s medical appointment. The Court held that Jerry had proven that undue influence did not occur.
In Jung Estate, the Will was declared invalid on the grounds that Ms. Jung, the will-maker, lacked testamentary capacity and did not know of and approve of the contents of the Will. The Will was therefore found to be invalid and Ms. Jung’s estate was ordered to be distributed according to her 2001 will, meaning the estate was equally split between Jerry and Steven (not the ¾ to Jerry and ¼ to Steven instructions she gave the lawyer in 2017).
Jung Estate provides a thorough analysis of the law on how a court can find a will to be invalid. The factors that led to Justice Blake’s finding in this case were Ms. Jung’s passive and non-confrontational character, as well as her lack of understanding of the effect of her Will. The will-maker must understand the general nature of their assets when executing their will and Ms. Jung did not have this understanding.
If you require assistance with drafting or contesting a will, please contact McQuarrie and let us help.