Nova Scotia court invalidates will executed by deceased father diagnosed with terminal cancer

The Supreme Court of Nova Scotia has invalidated a will of a deceased father diagnosed with terminal cancer due to a lack of mental capacity and after being subjected to undue influence by his eldest son.

In Billard v. Billard Estate, 2022 NSSC 167, the testator, George William Billard, died of terminal cancer. He is survived by his five adult children, including the eldest son, Dennis Billard, and the applicant, Tanya Billard. In his 2018 will, the testator left his entire estate to the applicant. However, in his 2020 will, the testator left his two properties to Dennis and named him as his executor. The applicant did not know that the testator had executed a new will until after Dennis had returned to Ontario.

The applicant has applied with the Supreme Court for proof in solemn form of the testator’s 2020 will under the Probate Act. She alleged that the testator lacked testamentary capacity and did not know the will’s contents.

The applicant also alleged that Dennis unduly influenced the testator. They based this allegation on the following arguments: (a) the testator lacked the decision-making capacity to execute a new will due to his cancer and overuse of prescription opioids to manage his pain, and (b) the changes made on the will “did not make sense” because the testator had a close relationship with the applicant and always expressed his intention that she would inherit the properties.

In response, Dennis claimed that the testator changed his previous will because his relationship deteriorated with the applicant and her husband. He also claimed that he did not observe any signs that the testator lacked capacity and that he had nothing to do with the changes made on the will.

In its decision, the Supreme Court ruled in favour of the applicant and found that the 2020 will did not constitute a valid will.

Considering all the evidence carefully, the court found that the testator had no testamentary capacity when executing the new will and did not know or approve of its contents.

According to the court, the testator’s mental ability started declining in 2020, and the decline was “progressive.” Moreover, the testator’s health care providers and those closest to him had established that his mental capacity was significantly impaired in the weeks before and the days after the execution of the 2020 will.

The court noticed that the testator’s changes to the will “did not make sense” given his “comparatively distant” relationship with Dennis. In addition, a deterioration in the testator’s relationship with the applicant and her husband or any other reason did not explain these changes.

“While it appears that the testator understood the extent of the property that he was disposing of, I find that he did not understand the nature of the act of making a new will and its effects, and that he was not able to comprehend and appreciate the claims to which he ought to have given effect,” Justice Gail Gatchalian wrote.

Although there was no direct evidence that Dennis unduly influenced the testator, the court held that the 2020 will remained invalid. It drew this inference based on the following:

• The testator’s close relationship with the applicant, his comparatively distant relationship with Dennis, and his intention − which he expressed many times to different people − that the applicant would inherit the properties;
• Dennis knew that the testator was very unwell and taking opioids to manage his pain. In short, Dennis knew that the testator was weak and vulnerable;
• Dennis benefits the most from the terms of the new will − the properties are left to him alone.

“I conclude that Dennis’ influence on the testator was so great and overpowering that the 2020 will reflects the intent of Dennis, as the beneficiary of the bulk estate, and not the testator’s intent,” Justice Gatchalian wrote. “I find that the testator did not have an independent mind that could withstand Dennis’ influence.”