Published October 13th, 2021
Can a will be annulled?
Have you ever wondered whether a will can be annulled after the testator’s death?
People do not always leave a will behind before they pass away. When no will can be located, the distribution of the deceased’s property is determined by law. However, more often than not, the deceased does leave behind a will setting out how they wish their property to be distributed.
In the latter, persons who were close to the deceased will sometimes challenge the validity of their will. They may call into question, for example, the deceased’s state of mind when the will was signed, or raise the fact that the provisions of the will do not correspond to what the deceased would have wished. They then ask themselves whether the will can be annulled.
The right to freely dispose of one’s property by will has been enshrined in Quebec law since 1774, and is respected and enforced by the courts. Quebec law recognizes the testator’s right to decide on the disposition of their property as they wish, to the heirs of their choice, whoever they may be. Thus, only in certain specific circumstances will the courts agree to intervene and invalidate a deceased’s will.
We will briefly explain the two main grounds by which the courts have declared the nullity of a will.
Grounds for annulling a will
A will can be annulled when it is possible to conclude that the testator was incapacitated at the time of signing the will.
It is important to bear in mind that in Quebec, every individual is presumed to be of sound mind. The burden is thus on the person challenging the will on the ground of incapacity to prove, on a balance of probabilities, that the testator did not have the requisite capacity to make a will when they signed it (1).
In order to determine whether a testator has the capacity to make a will, the following factors will be taken into consideration:
- Whether the testator knows, without any assistance, the nature and extent of the property being beaqueted;
- Whether the testator knows and understands the nature and consequences of the act he is about to sign;
- Whether the testator knows (remembers) the name and identity of the persons to whom they were making a bequest;
- Whether the testator knows the nature of the relationship they had with those persons;
- Whether the testator knows and recalls all these facts;
- Whether the testator is capable to understand how all the foregoing factors are interrelated;
- Whether the testator has the capacity to remember the decision he made (2).
In sum, the testator must understand the extent of his assets and remember to whom he has bequeathed which property. The testator must also have understood the significance of the bequests.
When litigation ensues on the validity of a will on the ground of the testator’s incapacity, it is common to obtain and examine their medical files relating to the period surrounding the signing of the will.
The parties may also choose to retain a medical expert to evaluate the testator’s capacity at the time the will was signed, if the facts of the case justifies it.
In conclusion, it is important to note that a momentary memory lapses will not justify nullifying a will. The above-mentioned factors must also be taken into consideration in determining if the testator was ultimately capable of understanding what he was doing when signing the will.
The second ground on which a court may annul a will is undue influence exerted on the testator at the time of signing it.
For example, when the testator signed the will, he may be under the sway of one of their children, a brother or sister, a new spouse, etc.
In order for the court to conclude that undue influence was exerted, it must be demonstrated that a third party used fraudulent tactics which were decisive in how the testator disposed of their property (3).
The court may conclude that fraudulent tactics were used where the other person’s conduct was accompanied, for example, by the interception of correspondence, or by preventing others from visiting, or through the systematic denigration of close relatives (4).
The person alleging undue influence as a ground for annulling the will has the burden of proving that the testator’s consent was vitiated by the influence of the person accused thereof and that the latter’s fraudulent tactics cause the testator’s decision.
These allegations must be prooven according to the evidentiary standard of balance of probabilities, which means that mere suspicions, hypothesis or hearsay will not be sufficient to prove the presence of undue influence.
Effects of annulment of a will
If the court declares that a will is null, its provisions are inapplicable. The succession will then have to be liquidated in accordance with the provisions of the deceased’s previous will, if any. If the nullified will was the only will signed by the deceased, the succession will be liquidated in accordance with the law.
There are two principal grounds on which Quebec courts will declare a will null, namely incapacity and undue influence.
It is important to note that the burden of proof is on the party seeking the annulment of the will.
Some may think that they are in presence of an obvious situation that would justify the annulment of a will, but the evidence does not always lead to that conclusion.
Before investing time, money and energy in legal proceedings seeking the annulment of a will, we recommend consulting a qualified legal advisor to obtain an assessment of the evidence that would be submitted to the court and evaluate the chances of success of such proceeding.
(1) Bourke c. Serres, 2020 QCCA 840; Brusenbauch c. Young, 2019 QCCA 914;
(2) Succession de Lemasson, 2020 QCCS 233; St-Pierre c. St-Pierre, 2018 QCCS 3892;
(3) Succession de Charrette, 2017 QCCS 1381
(4) Jacques BEAULNE, Droit des successions, 5th ed. updated by Christine MORIN, 2016, Montreal, Wilson & Lafleur, pp. 245-246.