Suspicious Circumstances in Disputed Wills

Clarence Hay was murdered on June 26, 1988. He was 81 years old, single, and had no children.

His friend 29 year old Sandra Vout had nothing to do with his murder, but the police interviewed her as part of their investigation.

Mr. Hay had made a will on July 11, 1985 in which he left a farm to Ms. Vout, another farm to one of his nephews, some cash gifts to other relatives, and the rest of his $320,000 estate to Ms. Vout.

The circumstances concerning how the will came about are not entirely clear.

It is clear that the will was drawn by a legal secretary and signed at a lawyer’s office. Ms. Vout recommended the lawyer’s office. No lawyer was involved in preparing or signing the will. Mr. Hay signed the will in the presence of two legal secretaries, both of whom signed the will as his witnesses. It is also clear that Ms. Vout was present when Mr. Hay signed his will, and that she paid the bill.

Other aspects are less clear. The secretary who prepared the will said that Ms. Vout had told her what Mr. Hay wanted in the will. Ms. Vout denied that she was involved in giving any instructions to the secretary. Ms. Vout had told the police that she drove Mr. Hay to the appointment at the lawyer’s office to sign the will. At trial Ms. Vout said that she met him at the office.

The secretary who prepared the will said that she read the will to Mr. Hay in front of Ms. Vout. At one point, Mr. Hay hesitated, and Ms. Vout said, “Yes, that’s what we discussed. That’s what you decided….”

After Mr. Hay’s death, some of his relatives were unhappy with the will. They challenged the will, arguing that he did not have capacity to make a will, or that Ms. Vout had unduly influenced him.

After considering all of the evidence, Mr. Justice Byers concluded that the will was valid. He found that Mr. Hay “was old and eccentric, but alert, smart, independent, determined, and most important, not easily influenced.” He found that Mr. Hay had capacity, and was not unduly influenced.

Mr. Hay’s relatives appealed to the Ontario Court of Appeal, and the appeals court set aside Mr. Justice Byers’ decision.

Ms. Vout appealed to the Supreme Court of Canada.

Mr. Justice Sopinka, wrote the judgment of the Supreme Court of Canada, in Vout v. Hay, [1995] 2 S.C.R. 876. In doing so, he discussed the burden of proof in contested wills cases, and how courts should deal with suspicious circumstances.

In a contested will case, the burden of proof is on the person propounding the will (usually the executor). He or she must prove that the testator (in this case Mr. Hay) signed the will according to the formal requirements of provincial legislation, knew and approved of the contents of the will, and had capacity to make the will.

If the person propounding the will shows that the testator signed the will according to the formal requirements of a valid will, and that the testator read the will (or that someone read the will over to him), and he appeared understand it, the court may generally presume that the will is valid.

But if there are suspicious circumstances, then the person propounding the will must provide further evidence that the testator knew and approved of the contents of the will, and had capacity to make a will, to overcome the suspicious circumstances. The evidence required will be proportionate to the gravity of suspicion raised by the circumstances.

Suspicious circumstances may relate to the preparation of the will, to the capacity of the testator, or to whether the testator’s decision making was overborne by coercion or fraud.

But the onus of proving that someone procured the will by undue influence always rests with the person alleging undue influence.

In this case there were suspicious circumstances surrounding the preparation of the will, including the evidence that Ms. Vout instructed the secretary on what Mr. Hay wanted in his will, that her evidence was not believable, and that she stayed with Mr. Hay and coached him before he signed the will.

Mr. Justice Sopinka held that Mr. Justice Byers’ found facts that overcame the suspicious circumstances. The trial judge expressly found on all of the evidence that Mr. Hay knew what he wanted to do in his will, and had the capacity to make a will. Mr. Justice Byers’ also found that Ms. Vout did not unduly influence Mr. Hay.

The Supreme Court of Canada restored Mr. Justice Byers’ decision that the will was valid. Ms. Vout was entitled to keep her share of Mr. Hay’s estate.

When I first read this case years ago, I was surprised by the result. The lawyer's office did not take any precautions to make sure that the will did indeed reflect Mr. Hay's intentions. A lawyer should have met with Mr. Hay, taken the instructions from him, and Ms. Vout should not have been present when Mr. Hay gave the instructions or signed the will. Someone making a will may talk more freely when meeting alone with his lawyer, than when a potential beneficiary is present.

But the Supreme Court of Canada, as an appeals court, will defer to a trial judge's decision, unless the trial judge made a palpable and overriding error. I don't think that this decision should be interpreted as in anyway endorsing the manner in which the lawyer's office handled Mr. Hay's will.