In any application to set aside a Will, there is the threshold issue of whether the person has standing to bring the proof in solemn form action.  An individual would seek to set aside a Will when they believe it is invalid by reason of improper execution, the testator did not have capacity, or the testator was unduly influenced. In addition, the Saskatchewan Court of Appeal commented on the potential operation of the historical doctrine of righteousness, which would allow the Court to set aside a Will if a person could not justify the "righteousness" of the transaction when that person was "instrumental" in the drafting of the Will and either received a benefit greater than other beneficiaries or if other circumstances exist that raise the "suspicion" of the Court.1

In accordance with the Queen's Bench Rules, a person who "is" or "may be" interested in the estate may have standing to set aside a Will.2 In either circumstance, merely claiming an interest or potential interest is insufficient for the Court to grant standing. The person must adduce sufficient evidence to satisfy the Court.3

A person who "is" interested in the estate has been defined to include the following:

  • Those who are entitled to the estate through intestacy, a legatee in the Will, and an executor or beneficiary under any other testamentary instrument.4
  • Any person entitled to support pursuant to The Dependants' Relief Act, 1996, a spouse or former spouse pursuant to The Family Property Act, and sometimes a beneficiary under The Fatal Accidents Act.5 

A person who "may be" interested in the estate is defined to include:

  •  those with a potential interest under any other valid testamentary document or under an intestacy; and
  • those who "are designated in the will or other such document to perform some function in the course of carrying out the testator's intention."6

The person must have either a legal or financial interest in the outcome of the estate: "The person claiming standing must have a stake in, and be affected by, the outcome of any challenge to the will".7

If a person is able to produce sufficient evidence to satisfy the Court of their standing, then they will still need to prove to the Court that there is a genuine issue for trial.8 The grounds being advanced to set aside the Will, be it incapacity, undue influence or improper execution, will determine the types of evidence that should be adduced to prove there is a genuine issue for trial. As the representative of the estate, if the challenger to the Will proves there is a genuine issue for trial, then the presumption shifts and the respondent seeking to uphold the Will must present uncontradicted evidence to rebut the challenge to the Will.9

For more information relating to setting aside Wills for undue influence or incapacity, dependant relief applications, and family property applications, please view the related blog posts:

Estate Litigation: Family Property Rights for the Living Spouse

Setting Aside a Will: Incapacity or Undue Influence

Dependants' Relief Legislation: What to do When Your Inheritance from a Deceased Parent or Spouse is Inadequate to Meet Your Needs?

Paige is an associate in the Saskatoon office where she practices primarily in estate litigation and provides related services in estate planning, estate administration and guardianship or co-decision-making applications, while maintaining a general civil litigation and family law practice.

About McKercher LLP:

McKercher LLP is one of Saskatchewan's largest, most established law firms, with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have helped our firm to rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2019/20). Integrity, experience, and capacity provide innovative solutions for our clients' diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.

Footnotes

1 Karpinski v Zookewich Estate, 2018 SKCA 56 (CanLII) at para 44-47.

2 Queen's Bench Rule 16-46.

3 Olson v Skarsgard Estate, 2018 SKCA 64 (CanLII) at para 21.

4 Re Verbonac Estate (1997), 159 Sask R 299 (QB) at para 8.

5 Olson v Skarsgard Estate, supra note 3 at para 20.

6 Olson v Skarsgard Estate, ibid at para 60.

7 Adams Estate v Wilson, 2020 SKCA 38 (CanLII) at para 76.

8 Ritchie v Royal Trust Corp. of Canada, 2007 SKCA 64 (CanLII) at para 5.

9 Ritchie v Royal Trust Corp. of Canada, ibid at para 45–49;Carlson v Lazicki, 2012 SKQB 260 (CanLII) at para 33, 400 Sask R 2014; Wilson v Staples, 2018 SKQB 245 (CanLII) at para 71-75, 196 ACWS (3d) 876.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.