NB Court of King's Bench rejects son's challenge to father's last will

The New Brunswick Court of King's Bench has dismissed a son’s application to set aside his father’s will, finding that the deceased had testamentary capacity and was not unduly influenced.

In Padget v. Padget et al., 2024 NBKB 93, David Padget sought to invalidate his father, Alton Padget's, will, arguing that Alton lacked capacity and was under undue influence. David also requested a provision from the estate under the Provision for Dependants Act.

In response, the respondents, including Alton's daughter Catherine Padget, filed a motion to dismiss David's application and sought orders for him to vacate the family home at 37 Broadview Avenue in Fredericton.

Alton Padget's previous will, executed in 2018, named his wife Dorothy as executrix and David as alternate executor. It provided for the distribution of Alton's property to his issue "most in need" if Dorothy predeceased him. Dorothy died in November 2021, and several months later, Alton executed the 2022 will, appointing Catherine as executrix and bequeathing the family home to her.

The court examined whether Alton had testamentary capacity and whether there was undue influence during the execution of the 2022 will. The court referenced the legal test for testamentary capacity from recent jurisprudence. The court found that Alton understood the nature and effect of the 2022 will, comprehended the extent of his property, appreciated the claims of his children on his estate, and was not impaired by cognitive or mental issues.

Evidence from Ian Donihee, the lawyer who prepared the will, and Dr. Peter Dickinson, Alton's physician, supported the finding that Alton had the capacity to execute the will. Donihee testified that Alton independently instructed the will's preparation and confirmed his decisions without influence. Dr. Dickinson's examination shortly after the will's execution affirmed Alton's sound mind and understanding.

The court found no evidence of undue influence. Although David alleged that Catherine influenced Alton, particularly concerning a $19,000 transaction used to pay Catherine's mortgage, this occurred well before the will's execution and did not demonstrate undue influence at the relevant time. Donihee's affidavit confirmed Alton's independent decision-making in altering his will.

Ultimately, the court found that David's claim under the Provision for Dependants Act was statute-barred as it was filed beyond the four-month limit after Alton's death. The court dismissed David's application to set aside the 2022 will, upholding its validity.