A family member or another party interested in an estate may seek to challenge the validity of a will and ask that the court either set aside the entire will or find that a particular clause is invalid. Various circumstances may give rise to a will challenge. For example, a beneficiary may believe that the testator did not have the capacity to execute their will at the time it was signed, or there may be evidence to suggest that the testator sought to revoke their will and replace it with an updated one. While many challenges are advanced out of genuine concern, some parties may seek to attempt to increase their inheritance. However, will challenges can involve highly contentious litigation between family members and friends and can result in substantial cost incurrences, delays, and emotional distress for all parties involved.

In a recent decision from the Supreme Court of British Columbia, a son sought to contest the validity of his late mother’s will and a property transfer executed by her before her passing due to claims of undue influence and capacity concerns. However, the deceased’s husband and her two other sons disagreed with these allegations.

Deceased diagnosed with cancer; makes changes to estate plan

In the matter of Novak v Seemann, the plaintiff (“KN”) sought to challenge the validity of his late mother’s will, in addition to a property transfer which occurred months before her death. The deceased passed away on May 4, 2020, and was survived by her husband (“ES”) and her three adult children, including the plaintiff and the applicants/defendants (“PN” and “EN”). KN claimed that his mother lacked the necessary capacity to execute such documents, or in the alternative, she experienced undue influence at the time these documents were signed.

Prior to her death, the deceased was the registered owner of a property (the “OC Property”) and was a shareholder in two private British Columbia companies which owned a property and mortgage, respectively. ES claimed that the property was where he and the deceased resided for over twenty years. In October 2018, the deceased was diagnosed with cancer that had spread through her lungs, liver and brain. By January 2020, KN claimed that her health was rapidly declining and she was displaying “symptoms of mental decline.” In late January, KN claimed that the deceased began making “drastic changes” to her estate plan.

Deceased prepares will and property transfer months before death

On January 27, 2020, the deceased executed a transfer of title to herself and ES for the OC property, which included the right of survivorship. On January 31, 2020, the deceased executed a will naming her three sons and co-executors and co-trustees of her estate. The will also provided that her shares and interests in the businesses were to be transferred to her husband, while the rest and residue of her estate was to be divided into three equal shares to be distributed to each of her sons.

ES denied KN’s claims that the deceased’s health was deteriorating at that time and argued that during this period, she was still hosting family dinners and traveling abroad.

Estate administrators request complete copy of solicitor’s estate planning file

When the deceased passed away, her interest in the OC property passed to ES by the right of survivorship. KN subsequently renounced his executorship under her will and commenced an action in court, disputing the validity of the property transfer and the deceased’s will, claiming that she was under undue influence or lacked the mental capacity to instruct and execute such documents.

KN’s brothers, EN and PN were appointed as estate administrators. They sought a Court order directing the son of the deceased’s solicitor, who acted for her in the will execution and property transfer, to deliver a copy of his complete estate planning file for the deceased. The estate administrators claimed that the contents of the solicitor’s file were directly relevant to the deceased’s testamentary capacity, and could shed light on the presence or absence of undue influence. Despite these documents being protected under solicitor-client privilege, the estate administrators asserted that they had legal authority to access and demand the production of such documents.

Court orders solicitor to produce a copy of his estate planning file for the deceased

The Court acknowledged that the order appointing PN and EN as estate administrators granted them all the rights, powers, and duties of a personal representative, aside from the right to distribute the estate assets. Further, the Court noted that an estate executor has authority to waive solicitor-client privilege belonging to the deceased. As such, the Court determined that the solicitor’s estate planning file for the deceased were to be used to advance document discovery in KN’s action and was not to be used to assist with the administration of the estate.

The Court emphasized that the estate administrators did not have the authority to access privileged documents of the deceased or waive such privilege, and these documents were not required for them to carry out their duties as administrators. However, PN and EN advanced an argument about the “wills exception” to solicitor-client privilege, which allows privilege to be displaced on public policy grounds to determine whether a testator was subjected to undue influence or to decide whether the deceased had capacity to express her true intentions in her will.

The Court also noted that the wills exception had been broadened to include analogous transactions, including the production of a solicitor’s estate planning file when the deceased had transferred property months before her death. In this case, the Court found that the property transfer was seemingly done as part of the deceased’s comprehensive estate plan and was, therefore, an analogous transaction that fell under the wills exception. Accordingly, the Court ordered the deceased’s solicitor to produce a certified copy of his complete estate planning file for the deceased and deliver it to the estate administrators.

Contact the Wills and Estates Lawyers at Meridian Law Group in Vancouver for Trusted Advice on Estate Planning and Will Challenges

At Meridian Law Group, our team of estate planning and litigation lawyers help clients navigate the complexities of comprehensive estate planning and assist with developing creative solutions to mitigate future disputes. If a will challenge or other estate dispute arises, our lawyers quickly take steps to preserve our client’s rights and ensure that the matter is resolved quickly and efficiently. With offices conveniently located in downtown Vancouver, our firm proudly provides services to clients across the province. To schedule a confidential consultation with a member of our wills and estates team, please call us at (604) 687-2277 or contact us through our online form.