Michael Ford (post until Oct. 31/18)
Estates & Wills & Trusts

Law places some limits on testamentary freedom

By Matthias Duensing

Many people assume that a properly drafted and signed will is not at risk of being invalidated, but as the recent ruling in Poitras Estate v Poitras, 2016 ONSC 5049 (CanLII) reveals, the circumstances surrounding a will’s creation can affect its validity.

The courts can void wills that are executed in suspicious circumstances, or order that an estate make adequate provision for a deceased person’s dependants if a will fails to do so.


Applicant Pamella Poitras brought a claim against her stepchildren following the death of her husband of 26 years, Gilles Poitras. In 2010, Gilles executed a will in which Pamella was named as estate trustee, and granted: a life estate in their home; the right to sell their home and use its proceeds towards another residence; and entitlement to estate income during her lifetime.

In 2013, two months before his death and at his children’s urging, Gilles engaged a new lawyer to prepare a new will (the “2013 will”). In this will, Gilles named his children as estate trustees, he removed Pamella’s right to roll her interest in their house into a new home, and he deleted Pamella’s right to estate income. He also changed his most significant GIC investments from joint-ownership with Pamella to sole ownership, and removed Pamella as beneficiary of his retirement fund.

Following Gilles’ death, Pamella sued the estate, asserting the stepchildren improperly influenced Gilles to change his will and make inadequate provision for her support.

Undue Influence

The court accepted that the 2013 will was properly executed and made when Gilles had testamentary capacity. It put weight on the fact that a doctor had signed a letter attesting to Gilles’ testamentary capacity before he signed the 2013 will. However, the judge found the circumstances under which the will was drawn up were suspicious — Gilles entered a new will when nothing had changed in his relationship with Pamella; his children selected the new lawyer and booked the appointment; and all of these changes occurred without explanation by Gilles or discussion with Pamella.

Ordinarily, a duly executed will and proof of testamentary capacity are sufficient to establish that a testator approved of a will’s contents. But where a court finds that suspicious circumstances point to the possibility of undue influence, the estate cannot rely on the will’s proper execution as proof that the will reflects the testator’s true intentions. In such cases, the will’s validity is no longer presumed, and the court must decide on a balance of probabilities whether the will is valid.

Weighing the factors, the court concluded there was insufficient evidence of undue influence to establish that the 2013 will should be rendered void. It noted Gilles was not isolated by or dependent on his children, they did not sit in on the discussions with his lawyer, and they did not demand transfers of Gilles’ assets prior to his death.

Adequate Support for a Dependant

In a separate claim for relief, Pamella sought support under the Succession Law Reform Act (SLRA). The SLRA authorizes courts to make orders of support to the dependant(s) of deceased persons if a deceased person has failed to provide adequate support.

While the court found Pamella had adequate income to cover her current expenses, it concluded that her monthly earnings could become inadequate in the future, particularly if she moved into an assisted-living home and lived for a long time. It ordered the estate to pay Pamella a lump sum of $85,000.


Wills are not immune from challenge simply because they are signed and made when a testator is of sound mind. Testators should be mindful of the circumstances under which they draw up their wills, and should meet independently with a lawyer to provide instructions.

While it is a deeply entrenched principle of law that testators are free to distribute their property as they choose, the law does place some limits on this power. If testators fail to provide adequate support for their dependants following death, a court can order such support to be provided.

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