Financial Advisor & Pastor’s Evidence Saves the Day
“It’s not what you know, it’s what you can prove.” – Denzel Washington, in Training Day, 2001
I am doubtful, but remain hopeful, that Klassen v Estate of John Arnold Wiers, 2018 SKQB 32 (CanLII) (“Klassen v Estate of John Wiers”) may spur the Training Day sequel on the basis that: If conflicting parties each have proof, then it does become about what each of them – or their trusted contact person – knows.
The decision in this case does not elaborate on concepts such as capacity risk factors or distinguish the “trusted contact” evidence (term described below), nor does it have the benefit of expert retrospective evidence, all of which may weaken the potential breadth of the precedent value. However, Klassen v Estate of John Wiers will continue to emphasize the importance of methodical information being collected by all sectors (not just lawyers) to understand a person’s intention and/or capacity.
A Closer Look at Klassen v Estate of John Wiers
The primary issue before the court was: Is there enough evidence to support that John Wiers’ (“John”) Will from August 12, 2015 was invalid as a result of incapacity or undue influence?
The action was commenced by John’s daughter, Lyndell Klassen (“Lyn”). Some of the material facts include:
- John had a wife and two children, Lyn and Mark. Mark and John farmed together.
- Mark died in 1995. Mark‘s wife, Donna, and three children survived him.
- John sold his farm in 2005 and moved into independent living before he moved into a senior’s residence in 2015.
- Lyn lived in British Columbia and had an alleged falling out with Donna.
- The Will being challenged made changes which removed the applicant’s interest from real property, added Donna as a 50% beneficiary of the residue, and appointed John’s pastor as the executor.
Evidence in support of Lyn:
- An affidavit from John’s best friend of 70 years, who visited John every week and said he noticed a change in John in 2014, including a time when John appeared uncertain of how to find his way home.
- John was diagnosed with dementia in 2009. A letter dated April 7, 2015, from a neurologist who examined John stated that John lives with severe dementia but he is able to function very well, which is unusual.
Evidence against Lyn:
- Applicant rarely visited
- In 2014, Lyn visited John and noticed changes in his typical organized and tidy habits
- John’s financial advisor of over 20 years provided evidence that John’s intention was to have the property go to Mark and his family, aligning with the 2015 Will that was prepared and witnessed by the financial advisor.
- The neurologist mentioned John that functioned at a high level
Outcome:
The application was dismissed largely because of Lyn’s inability to provide evidence of John’s incapacity or undue influence. The information from the non-interested parties, such as the financial advisor and the pastor, were central for the judge to understand John’s intention which was the primary focus of the decision.
“There is no question that the deceased was suffering from the effects of Alzheimer’s, or another form of dementia, at the time he executed the Will. However, I am not satisfied that the applicant has put forward evidence… that would tend to negative testamentary capacity and/or support a finding of undue influence.”
Justice McMurtry in Klassen v Estate of John Wiers
Key Takeaways!
- Documenting your client’s intentions (regardless of your industry) may safeguard future challenges, even if the future challenge is unrelated to your relationship.
- Cognition is a domain to be included in an evaluation for capacity, but it is not a determinative factor (see paragraph 11 referencing the 7 out of 30 on the mini-mental examination).
- This is a clear case where the parties would have benefited from a retrospective opinion on John’s testamentary capacity on or about August 12, 2015, AND legal professionals to be providing the qualified advice during the planning and execution of the Will.
- Scrutinize trusted contact appointments. The length of time people know each other does not equate to useful evidence for a particular legal test (such as the best friend of 70 years).
- It would be interesting to learn why John did not make these changes after Mark’s death or before his dementia diagnoses.
- What training did the witnesses to the Will execution have to identify red flags or risks of incapacity and what legal concepts did the financial advisor explain to John?
If you have questions about incapacity evidence or how a condition or health information may impact a decision, please reach out and seek any legal representation that may be needed.
