Be careful who you appoint power of attorney (POA) or your will could wind up in court. An Ontario widow’s estate was still wrapped up in litigation 14 months after her death.
Altering a Last Will and Testament
“Berta” (name changed to protect her identity) was suffering from anxiety when she remade her personal will in July 2012. Her siblings and niece “Annie” had all died within a year of each other — Annie by suicide — and the 84-year-old widow was grieving their loss. As Annie’s brother “Johnny”, who lived in the U.S., relayed the story in his court affidavits and testimony, Berta had relied on her family to take her to church and social functions. Johnny had power of attorney for property for her financial decisions or so he told the court. He had assumed he would take over as estate trustee after his sister’s death. An earlier will had named him alternate executor.
What Happens When a Will is Changed
But as Johnny discovered when Berta died in September 2018, Annie’s husband “Ferdinand” had other plans. Johnny said he understood Annie’s share of Berta’s estate would go to her adult children. An accountant, Johnny recounted that Berta had given him written instructions about her investments and safety deposit box during his frequent trips to Toronto to discuss her will and finances. He was surprised to be left out of her new will, both as estate trustee and heir.
Replacing an Executor in a Will
The new will named Ferdinand as executor and Annie’s brother-in-law as alternate. Annie’s children were given the estate residue, anything left after all other gifts were distributed. Ferdinand’s court affidavits and testimony told a completely different tale from Johnny’s. He said Berta had given him her will in 2012 and granted him power of attorney for property. He denied that Johnny had been close to Berta and said he, his brother and Annie’s children had been her constant companions. Further, he said, Johnny had made himself heir to his own mother’s home (Berta’s sibling) just before she died, causing a bitter court battle with Annie’s children.
Proving Mental Capacity in Estate Disputes
As Ferdinand was about to discover, be careful what you say in affidavits or in court. Being a psychiatrist, he told the court he was accustomed to assessing whether seniors were “of sound mind”. It was his opinion that Berta was fine. Up to a year before her death, he said, she was still driving herself around to social functions and appointments. She had only recently begun relying on others for limited assistance, but she was certainly capable of managing her own finances. She had no anxiety that he knew of nor, to his knowledge, had she taken tranquilizers to cope with Annie’s death.
Subpoena Legal Documents
But did Ferdinand know that for a fact? The judge ruled otherwise. Johnny’s mother’s death, only a month before Berta changed her will in 2012, had been a big shock. Ferdinand wasn’t Berta’s personal physician and wouldn’t have known if she was suffering from anxiety or taking tranquilizers. Only Berta’s medical records and her lawyer’s notes could tell the court that.
Bad Blood, Contradictory Affidavits
Was Berta mentally capable of changing her will in 2012 or had Ferdinand unduly influenced her when she was at her most vulnerable? If it was possible grief or the medications had affected her, she may not have had “testamentary capacity” or the mental capacity required by law to alter her will. And what had she told the lawyer about why she left Johnny out of the new will? Bad blood had been spilled between the men at Johnny’s mother’s cremation and Ferdinand had contradicted himself in his affidavits.
Court Can Order Estate Records Released
Ordering estate records released to the disputants seemed the logical answer and that’s what the court did. Johnny and Ferdinand could meet in probate court again, once they had reviewed the disclosed documents. It was only fair to allow Johnny to view the records so he could “put a best foot forward” in arguing his case.
Executing a Power of Attorney
How had Berta gotten into this fix? Creating a POA for property required her to understand what she was signing and its legal effect. A POA gave her “attorney” (Johnny or Ferdinand, depending on which one she had actually chosen) the power to make financial decisions for her, especially if she was no longer capable of doing so. Being trustworthy was essential and that’s where Ferdinand disagreed with Johnny. Berta, he said, had stopped trusting Johnny.
Getting a POA Notarized in Ontario
Since a POA is a voluntary document, it need only be signed and witnessed by two impartial parties to be legally valid. Getting it notarizing is recommended — the notary can advise you if your witnesses are suitable to prevent your POA from being declared void by a court. Remote notaries accept legal documents via email and go online with you via video conference software to verify your identity. They can review the draft, make suggestions if needed and witness your e-signature.
Protecting Against Coercion
Johnny’s complaint that Ferdinand had turned Berta against him and unduly influenced her to alter the 2012 will could also have been prevented by a notary public. Notaries are obligated to check if clients are being coerced, bullied or unduly influenced to sign a POA. A video recording can be made of virtual, online signings in case a legal dispute arises later. It was too late for Berta, but fortunate for Johnny that the court had qualms about how valid her will and POA really were.
Getting an Affidavit to Go to Court
Save time and money by having an Axess Law Ontario notary public witness your court affidavit. Email your information to our virtual notary publics and remote in via video call to discuss the details. Licensed notaries can meet with you via online video conference 7 days a week, day or evening. Dial 877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an appointment. In person meetings can be arranged at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.
Click here to learn more about Axess Law’s notary public services.
Photo by Roland Steinmann|Pixabay.