Second Will, Second Spouse, Suspicious Circumstances

Does it sound like a B movie storyline? Perfect for this time of year, with long, dark nights and plenty of cloud and rain? Well, sorry, it is not. This story is about a case, Machander and others v. Drader, where reasons for judgement were released earlier this month.

The very old legal doctrine of suspicious circumstances can, if proven in a given situation, invalidate a Will. Any prior Will that the Testator may have done may then become valid again.

Under present law, a person looking to prove the validity of a Will must show that the Testator understood the Will, signed it and approved it. Legally, the Will is then presumed valid. But another person can produce evidence that shows the Testator did not understand or approve the Will. If that evidence is strong enough, the presumption of validity is overturned. That is generally the suspicious circumstances doctrine.

In this case, the application was actually to prove the Will of the deceased in solemn form (which protects it from later attack). I suppose there is a movie in there somewhere, so let’s take a look at the screenplay of this case.

Facts
The deceased was separated and had entered into a new relationship with the defendant. They lived together in a marriage-like relationship. There were no children from either relationship. The defendant grew ill in late-2010, entered hospital and died not long after.

Before entering the hospital, he indicated that he wanted to change his 2003 Will. Under that Will, the beneficiaries included his then-wife and, alternatively, his parents and siblings. The former wife was prepared to renounce her gift (in the event that the Court upheld the 2003 Will) and act as Executrix for the deceased’s parents and siblings.

The second wife was unable to contact the deceased’s Lawyer, and another was found. He attended twice in hospital and signed a Will with the deceased only days before he passed. The Lawyer brought a video camera into the hospital room, and the recording was an exhibit in Court. The Will itself was one page, was read to the Testator, and indeed was signed in the required fashion and properly witnessed.

Court’s Analysis
Since the second spouse made the application for the Order of validity of the second Will, she had to show the Will was valid. For the Court, it was the only issue in the case.

The parents’ and siblings’ evidence consisted, first, of a medical opinion. But the report was not delivered in time, and it was not in proper form under the Supreme Court Rules. Moreover, the doctor was not made available for cross-examination.

In any event, the Court held that the report was inconclusive and was inadmissible as evidence. The Plaintiffs also produced hospital records as evidence of the deceased’s state of health when he signed the Will. But those records were also held to be inadmissible — the Court held that they contained “double hearsay” evidence.

The Court held that the Plaintiffs were not able to produce strong enough evidence to indicate suspicious circumstances. Their reasons included:

1. The deceased wanted to change his 2003 Will, which was outdated given that most of the Estate was to go to his ex-wife;
2. No evidence suggested the deceased’s relationship with his new spouse was anything but a loving one, and he wanted her to have his (relatively modest, by the way) Estate;
3. The new 2010 Will was appropriate given the deceased’s relationship with his new spouse;
4. The Will was done by an experienced Lawyer.

The Court also held that the deceased did have the requisite capacity to understand the Will. The evidence there was not overwhelming. The deceased was not well in the days before he died, and he seemed to have had varying degrees of lucidity. But on the whole, the Court was satisfied that the deceased understood the Will well enough. The deceased did tell the Lawyer he wanted his Estate to go to his new spouse.

Summary
I’m not sure you could call the ending here a “Hollywood ending,” but the Court did hold that the 2010 Will was valid. The second spouse inherited his modest Estate. The Solicitor, working quickly once he became involved, had done well to record the review and signing of the 2010 Will.

The difficulty in producing good evidence to dispute the 2010 Will was clear. The Plaintiffs probably had a hard time arranging for the doctor to produce the report. Generally, it is difficult in suspicious circumstances cases to find good admissible evidence, and it is always the main challenge that Counsel face.

There is an abundance of instances in which people sign Wills in hospitals or otherwise where they are not necessarily in “normal” states of health. That doesn’t mean such Wills are invalid, but the trick is to find the right evidence to show a Will might be invalid. I suppose there is a movie in there somewhere, too!

This column will appear in the Richmond News on October 26, 2012.