The Ontario Superior Court was recently asked to determine whether a will could be successfully challenged on the basis of material mistake in fact, rather than the more common grounds on which a legal challenge to a will is typically based, which include:

• testamentary capacity;
• lack of valid execution;
• lack of knowledge and approval;
• failure to provide adequate provision for a spouse or child;
• undue influence; and
• fraudulent wills and forged wills.

In the case at hand, the daughter of the deceased sought to invalidate her mother’s will on the grounds that, while her mother had intentionally excluded her as a beneficiary to the will, her mother’s reasons for doing so were rooted in a mistake of fact.

Mistake of Fact as Grounds for a Will Challenge: A Case Study

Joan Katherine Cavanaugh died in 2016, survived by six daughters. In her final will, she left her estate to five of her daughters, purposefully omitting her sixth daughter, Carolynn Sutherland, with the following language:

“I wish it to be recorded in this my last will that I have intentionally omitted my daughter Carolynn Sutherland for whom I have made, in my view, adequate provision while I was alive”

The will appointed three of her daughters as estate trustees, who then applied to the court for a certificate of appointment of estate trustee with a will. Ms. Sutherland filed an objection to the issuance of the certificate, claiming the will had been created under suspicious circumstances involving undue influence, and that her mother lacked testamentary capacity at the time it was executed.

The three sisters seeking appointment as estate trustees brought a motion for summary judgment, seeking an order that the will was valid, and dismissing Ms. Sutherland’s objection to the issuance of the certificate.

At the hearing, Ms. Sutherland changed her approach and conceded that the will had been properly executed. Instead, she claimed that her mother had excluded her from the will based on a mistake of fact and that the will should be invalidated as a result. Ms. Sutherland provided minimal jurisprudence to establish that a will could be invalided on that basis, none of which was from an Ontario court. Her counsel confirmed that he had not located an Ontario case that had applied this proposition.

The Facts Behind the Mistake of Fact Claim

In 2011, the deceased instructed her lawyer to draft a new will in which she left her estate to her husband and named five of her daughters as the residual beneficiaries. Her lawyer’s notes from the time indicated that the deceased felt that she had already provided substantially for her sixth daughter, Ms. Sutherland and did not want her to benefit from her estate.

After her husband passed away in 2014, the deceased executed another will naming her five daughters as the beneficiaries and including the language quoted above, demonstrating her purposeful intention to omit Ms. Sutherland.

Just a few days prior to executing the 2011 will, the deceased and her husband had given Ms. Sutherland a cheque in the amount of $65,000. A review of the evidence established that the money had been paid to Ms. Sutherland after she demanded it in exchange for her execution of a transfer of land from herself and her mother to her parents as joint tenants. At the hearing, Ms. Sutherland took the position that while her mother may have believed the payment had been in exchange for the execution of the transfer, it had actually served as the repayment of a loan Ms. Sutherland had made to her father years prior of which her mother was not aware.

The evidence provided at the hearing overwhelmingly established that the funds had been paid to Ms. Sutherland in direct exchange for her agreement to execute a transfer of the property to her parents as joint tenants. The evidence further showed that while Ms. Sutherland had no legal claim to the property, she had demanded the payment from her parents in exchange for her cooperation and had even signed a receipt for the funds acknowledging their agreement.

Under the circumstances, the court found that the existence of a mistake of fact had not been demonstrated in this case.

The Future of Mistake in Fact as Grounds for a Will Challenge

In this case, the evidence was insufficient to establish mistake of fact. Accordingly, the court was not required to determine whether a material mistake of fact could have formed the basis for a successful will challenge. However, the issue has now been raised, presenting an interesting question that may be left up to a future court to decide. It could potentially introduce aground for will challenges not previously established in Ontario courts.

Having a well-drafted and up to date will is essential in ensuring your estate will be distributed in accordance with your wishes. One of the members of Duncan, Linton LLP’s Wills & Estates team can help you design a clear, thoughtful will that will protect your assets and provide for your beneficiaries. To make an appointment with one of our lawyers, please contact us online, or call 519-886-3340.