What to Do When There Are Two Wills

Published on 29 August 2022, 07:22:56 AM

Oh the confusion. Your deceased parent has left behind what you think is their final will — until you discover a second will disinheriting you. That’s what happened to two Ontario brothers.

Deciding if a Second Will is Legally Valid

Their lawsuit in Ontario Superior Court of Justice was based partly on their stepfather’s mental ability or “testamentary capacity” to make a valid second will. 

• Did he understand he was preparing a will?
• Did he ”get” the will’s contents?
• Did he know what assets he had and their approximate value?
• Did he plan to give away his assets?
• Did he know who he wanted to inherit?
• Did he consent to excluding his stepsons?

A Real Life Case of Testamentary Capacity

Richard and Michel were raised by their mother Madeleine and stepfather Lucien after their biological father died. Two years after marrying in 1981, the couple wrote what Ontario probate courts call ‘mirror’ wills. The wills were almost exact. Richard and Michel stood to inherit 50/50 when their parents both died. 

Making a Second Will When Circumstances Change

But when Madeleine died 24 years later in 2007, Lucien suddenly revoked the will and signed a new one. The second will gave his entire estate to his four biological children. Before dying 22 months later, he gave his daughter Paulette and a second son also named Richard power of attorney for property and personal care.

Taking Legal Action When a New Will Excludes You

His stepsons were blindsided. They argued their stepfather lacked testamentary capacity to make the 2007 will and was unduly influenced by Paulette and Richard, who stood to benefit when he died. As far as they were concerned, Lucien’s 1983 bequest was his valid last will and testament. Richard and Michel argued their mother and Lucien had made mutual wills. Because of that, Lucien was legally bound not to revoke his 1983 will. Paulette and Richard disagreed. Lucien had changed his will freely and had simply chosen to disinherit his stepsons. 

Mutual Wills Complicate Estate Distribution

Had Lucien and Madeleine truly made mutual wills in 1983? The court agreed they were mirror wills (the language was exactly the same). That didn’t make them mutual wills. For one thing, they hadn’t pooled their resources to give to their sons. Neither had received any benefits such as gifts from their partner’s will while they were alive. Nor did the wills, or any other legal documents, state they had agreed not to change their wills without their partner’s consent. 

Deciding If a Will is Mutual

A mutual will is a binding contract, not just “just some loose understanding or sense of moral obligation”, as the courts decided in Goodchild, Re (1995). Since nothing in their wills stated it, Richard and Michel couldn’t prove their parents had agreed not to revoke or alter their wills. 

Insufficient Proof of Mental Incapacity

Although the stepsons had a letter from an uncle who said Lucien was tired, depressed and heavily medicated due to cancer when he made the impromptu 2007 will, it was not enough. Lucien was driving right up to his death, made his own medical and medication decisions and his thinking was as sharp as ever. It was all evidence he was capable of deciding who to leave his estate to.

No Undue Influence Present

The stepsons also lost their undue influence claim. The lawsuit required them to prove unfair and improper conduct such as coercion, cheating or personal advantage as a result of a close and confidential relationship. Although Paulette and Richard could certainly have manipulated or coerced Lucien or abused their power to get him to change his will, the court found no evidence they had.

Not Unjust Enrichment If It’s Done for Love

If the 2007 will was valid, his stepsons had asked to be paid for assisting Lucien. They argued Lucien’s biological children were being unjustly enriched by inheriting his entire estate when Richard and Michel had helped him throughout his life. Again, their case fell apart. Richard and Michel admitted they had helped their parents out of love and hadn’t expected to be paid. Their request to be compensated for unjust enrichment was dismissed.

Reasons for the Court’s Decision

Richard and Michel could take some comfort, small though it was, in the judge’s final comments. Their plight was “tragic and troubling”, a sorry case of unfair choices.

Video Call to Make Your Final Will and Testament

Don’t leave your estate to chance. Axess Law Ontario wills and estate lawyers video conference with you to finalize your last will and testament. Call toll free to 1-877-552-9377 or 647-479-0118 in Toronto or use our online booking form to make an appointment. Video calls and e-signing appointments can be arranged anywhere in Ontario, 7 days a week, day or evening. You can meet in person with a licensed wills lawyer at our Toronto, Scarborough, Vaughan, Etobicoke, Ottawa, Mississauga Winston Churchill or Mississauga Heartland law offices. 
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