James Steele recently contributed to an article that was featured in the Regina Leader-Post. The article highlights the importance of discussing wills and final wishes with family before you pass.

Read the full article here.

A recent case from the Saskatchewan Court of Appeal reminds us of the importance of first confirming you have standing to challenge a will.

“Standing” refers to the question of whether a person has a sufficient legal interest in a given dispute. In other words, will they be in a different position, depending on the outcome of the proceeding? If they do not have such interest, they cannot be a party in that  proceeding.

In Adams Estate v Wilson, 2020 SKCA 38, an elderly woman died with no children. She left a large ranching operation, and land holdings. A neighbour, Mr. Wilson, claimed that he had helped the deceased for decades, and in return, she allegedly had promised him two things:

1. That she would pay him $1,000 per month to help cover expenses such as gas and use of his truck and tools; and
2. That Mr. Wilson would inherit her ranching operation and all her land, cattle and equipment when she died.

This agreement was not in writing, and Mr. Wilson was further not named in the deceased’s will.

The deceased made the will in May of 2011. It made no direct mention of Mr. Wilson. The will was vague, and not specific. It said that her executor, a Mr. Staples, knew that certain persons were trustworthy and loyal and helpful to the deceased, and Mr. Staples was to use his best judgment to ensure that some portion of the estate is given to those persons.

Mr. Wilson was also not a family member of the deceased. Thus, he would not benefit in the case of an intestacy (i.e. a situation in which no will was found valid). Moreover, Mr. Wilson was not a beneficiary of any prior will made by the deceased.

The issue:

Despite the above, Mr. Wilson brought an application to prove the will in solemn form. Solemn form means that a will must go through a much more rigorous trial process to see if it is truly a valid will. Typically, a solemn form application is brought if someone thinks a given will is invalid.

Here, the issue on appeal was whether Mr. Wilson had standing to apply for solemn form.

The Court of Appeal held that he did not. In reality, Mr. Wilson’s claim was a debt claim, not a claim involving the validity of the will. Even if he did prove himself a creditor, the Court noted that creditors have no right to challenge the validity of a will. More practically, even if Mr. Wilson struck down the will as invalid, that outcome alone would place him no closer to obtaining monies out of the estate:

• [79]           I have concluded, based on my previous analysis, that as a creditor or potential creditor of the estate, Mr. Wilson does not have the kind of interest that would entitle him to challenge the Will or require it be proven in solemn form. As well, Mr. Wilson does not have standing as a potential creditor in that, if his application to set aside the Will was successful and an intestacy were created, there would be nothing to be gained by him as a creditor. His claim against the estate would be the same. He has no stake in the outcome and, therefore, standing under Rule 16-46 cannot be established. [emphasis added]

Alternatively, Mr. Wilson also claimed that he had standing, in that he might eventually be proven (at a future trial) to be one of the persons who were considered “trustworthy and loyal and helpful”. However, this argument too did not explain why  Wilson was therefore applying to strike down the will. If Mr. Wilson succeeded in such an application, he would invalidate the “very bequest upon which he based his claim of standing,” and have “eliminated any chance that he would take under the Will” (para 84).

Mr. Wilson later sought to appeal this decision to the Supreme Court of Canada, but leave to appeal was not given.

Conclusion:

In short, anyone who wishes to challenge a will should ask if their legal, and practical, position will be improved by striking down a given will. In the case of someone like Mr. Wilson, it appears that another strategic path open to him would simply have been to:

1. Avoid the expense of a will challenge;
2. Instead, advance his claim as creditor to a determination, while considering interim measures to pause distribution of the estate assets.