Estate disputes often arise where grief, caregiving, property, and long-standing family tensions intersect. These disputes can become especially complex when a will is made late in life, the will-maker has cognitive impairment, and the document leaves most or all of the estate to one side of the family.

A recent Supreme Court of British Columbia decision considered these issues in the context of a handwritten will made by an elderly mother who had been diagnosed with dementia. The case, Singh v. Singh, involved competing accounts from family members about the will-maker’s capacity, her intentions, and the circumstances in which the will was prepared. Ultimately, the Court declared the will invalid.

Deceased’s Children Challenged Validity of Handwritten Will

The deceased was survived by several adult children. Four of those children challenged the validity of her handwritten will. The defendant was the deceased’s granddaughter, who had been raised by the deceased, the deceased’s husband, and one of the deceased’s sons.

The granddaughter had a close relationship with the deceased and the son who helped raise her. After the deceased’s husband passed away, the son and the granddaughter became the deceased’s principal caregivers. The deceased later lived with them in a Surrey home that became the estate’s main asset.

The will at issue left all of the deceased’s assets to that son. If he died before the deceased, the granddaughter was named as the alternate executor and contingent beneficiary. The son died before the deceased, which meant the estate would pass to the granddaughter if the will was upheld.

Will Written in English; Testator Primarily Spoke Hindi

The will was dated November 17, 2012. It was handwritten in English, even though the deceased could not read or write in any language and primarily spoke Hindi, with some Punjabi and minimal English.

The son, who was named the primary beneficiary, wrote the will. The witnesses were members of the granddaughter’s immediate biological family. The challengers argued that these circumstances raised concerns about whether the deceased truly understood and approved the will.

The will contained no attestation clause. The challengers also commissioned a handwriting opinion, but the opinion could not determine whether the deceased signed the will. Despite those concerns, the Court found that the will had been signed by the deceased in the presence of the witnesses and that the formal signing requirements under British Columbia’s Wills, Estates and Succession Act had been met.

Formal Validity Was Only the First Step

The Court explained that where a will meets the formal requirements, the law generally presumes that the will-maker had testamentary capacity and knew and approved the contents of the will. However, that presumption can be displaced if the challenging party establishes suspicious circumstances.

Suspicious circumstances are not only found in cases involving obvious wrongdoing. They may arise from the way the will was prepared, facts that call capacity into question, or facts suggesting the will-maker’s free will may have been overborne. In this case, the Court found several factors that, when considered together, amounted to suspicious circumstances.

Why the Court Found Suspicious Circumstances

The Court identified multiple concerns. The will was written by the primary beneficiary. It was witnessed by family members connected to the contingent beneficiary. The deceased could not read English, and the will was translated to her by the same son who wrote it and stood to benefit from it.

There was also evidence that the deceased had significant cognitive impairment and dementia when the will was made. In addition, the deceased depended on the son and granddaughter for day-to-day care and medical care.

These factors were enough to rebut the usual presumption of validity. Once that happened, the burden shifted to the party relying on the will to prove that the deceased had testamentary capacity and knew and approved the will’s contents.

Testamentary Capacity Is a Legal Test

A central theme in the decision was that testamentary capacity is a legal question, not simply a medical diagnosis. A person may have dementia or cognitive impairment and still have the legal capacity to make a will.

The Court reviewed the familiar test for testamentary capacity. A will-maker must generally understand that a will disposes of property on death, understand the extent of the property being disposed of, appreciate the family members and others who may naturally be expected to benefit, and not be affected by a disorder of the mind that prevents the exercise of their natural faculties.

The Court also emphasized that testamentary capacity is time-specific. The key question is whether the will-maker had capacity when the will was made. Capacity may fluctuate, and some people with cognitive impairment may have lucid intervals.

Conflicting Family Evidence

The family evidence was sharply divided. The challengers said the deceased had experienced serious cognitive decline beginning years before the will was signed. They described confusion, disorientation, wandering, repeating statements, and failing to recognize family members.

The defendant’s side relied on evidence from people who said the deceased appeared alert, recognized family members, and confirmed her intention to leave her estate to the son and then to the granddaughter. The witnesses to the will said it was explained to the deceased in Hindi and that she approved it.

The Court had to assess these competing accounts alongside the medical evidence. This was particularly important because the people who observed the will signing were connected to the granddaughter, while there was no lawyer, notary, or other impartial person involved in preparing or witnessing the will.

The Role of Medical Records

The medical evidence became a significant part of the Court’s analysis. The challengers relied on medical records from before and shortly after the will was signed. About six weeks before the will, the deceased had attended the emergency room, where the records referred to acute confusion, delirium, and dementia.

The Court also considered two geriatric medical assessments that occurred after the will was signed. Those records described severe dementia, disorientation, difficulty following instructions, agitation, and an inability to recognize even the granddaughter who accompanied her.

The Court accepted the clinical records as evidence of the clinicians’ observations and the fact that diagnoses were recorded. While the Court gave reduced weight to a later retrospective expert opinion about testamentary capacity, it found that the contemporaneous medical records were reliable and significant.

Dementia Does Not Automatically Invalidate a Will

The decision is careful not to suggest that a dementia diagnosis automatically prevents someone from making a valid will. The Court specifically recognized that a person with dementia may still have a sound disposing mind, especially where the estate and the testamentary plan are simple.

The Court also recognized the importance of respecting a will-maker’s wishes and avoiding assumptions based only on age, illness, or cognitive decline. A finding that someone lacks testamentary capacity should not be made lightly.

However, the Court found that this case involved more than a diagnosis. The medical records and lay evidence accepted by the Court pointed to advanced dementia and severe cognitive impairment at the relevant time.

Awareness of Natural Beneficiaries

Another important issue was whether the deceased appreciated the people who might naturally be expected to benefit from her estate. The deceased had several surviving children, as well as the granddaughter she had raised from birth. The will left everything to one son, and then to the granddaughter if that son died first. It did not mention the other children or provide any direct gift to the granddaughter unless the son predeceased the deceased.

The challengers provided evidence that the deceased had previously expressed a wish to include all of her children in her will. One non-party family member gave evidence about an earlier visit to a lawyer’s office, where the deceased reportedly indicated that she wanted all of her children included.

The Court accepted that evidence and found that the party relying on the will had not shown, on a balance of probabilities, that the deceased appreciated the natural objects of her generosity.

The Absence of an Independent Will-Drafting Process

The Court noted that in some estate litigation cases, notes and evidence from the lawyer who prepared the will can assist in determining capacity. A lawyer or notary may have evidence about the instructions given, the questions asked, and the will-maker’s understanding at the relevant time.

Here, there was no such evidence. The will was handwritten by the primary beneficiary, translated by him, and witnessed by family members connected to the contingent beneficiary.

The absence of an independent will-drafting process did not automatically invalidate the will. However, in combination with the medical evidence, the deceased’s language and literacy issues, and the beneficiary’s role in preparing the document, it contributed to the Court’s overall concern.

Court Found Deceased Lacked Testamentary Capacity When Will Was Signed

The Court found that, on a balance of probabilities, the deceased did not have testamentary capacity when the will was signed and was incapable of understanding and approving its contents. As a result, the handwritten will was declared invalid.

The Court also acknowledged the personal impact of the decision on the granddaughter. She had been raised by the deceased and had devoted significant time to caring for her. However, the Court noted that equitable arguments about her position were not before it. The issue before the Court was whether the deceased had testamentary capacity when the will was made.

Meridian Law Group: Vancouver Estate Litigation Lawyers Representing Clients in Will Disputes

Disputes over wills, testamentary capacity, dementia, undue influence, and suspicious circumstances can be difficult for families in Vancouver and across British Columbia. The innovative estate litigation lawyers at Meridian Law Group can assist with issues involving challenged wills, executor disputes, probate litigation, WESA claims, and estate disagreements involving capacity or caregiver involvement. To discuss an estate dispute in Vancouver, Surrey, Burnaby, Richmond, the Lower Mainland, or elsewhere in BC, contact us online or call (604) 687-2277.