Belief Is Not Knowledge; Suspicion Is Not Evidence

You may "know" something happened but can you prove it. A recent Ontario Superior Court of Justice decision demonstrates that mere suspicion is not enough to establish an evidentiary basis.

The Deceased disinherited her sister who then brought an application to have the Last Will and Testament proved in solemn form. The sister alleged the Deceased lacked testamentary capacity because she had demonstrated confusion and had difficulty calculating numbers. There were also allegations of undue influence claiming that the friend who was named estate trustee and the beneficiary of the residue shared that connection through a religious person. Finally, there were allegations that the Will had been made with suspicious circumstances because two lawyers had been consulted.

The court rejected the allegations. With respect to the lack of testamentary capacity, the sister simply had not had sufficient contact with the Deceased. The sisters lived in different cities and although they spoke on the phone weekly until 2019 between February 2019 and October 2021 had only spoken once. The allegations of confusion was not supported with specific examples and easily countered by the trustee's evidence given that the trustee frequently saw the deceased.

With respect to the undue influence, the allegation that the Deceased was influenced because she revered a certain religious person who her friend the estate trustee might have been related to was also insufficient to meet the evidentiary threshold since the sister was unable to point to any historical change in Deceased's decision making.

Finally, with respect to suspicious circumstances, the court rejected the idea that seeing two lawyers was suspicious. The unchallenged evidence of the estate trustee was that she did not choose either lawyer and did not attend the appointments to see the lawyer. The court noted that suspicions was not enough to become evidence if a disgruntled relative or potential beneficiary claims something untoward occurred.

The Lesson: Often disappointed beneficiaries claim wrongdoing but none exists. To meet an evidentiary threshold one must have specific examples of inability to make decisions, or specific and supportable examples of how the Deceased was influenced. It is also very helpful if at least some of that evidence is corroborated by third parties or independent documents that have not been created by the disappointed beneficiary.

Graham v McNally Estate, 2024 ONSC 4006 2024onsc4006.pdf

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