When a parent changes their will and leaves more, or even everything, to one child, family disputes often follow.
Many disappointed beneficiaries assume that a dramatic change in a will automatically raises concerns about undue influence or lack of capacity. However, Alberta courts require more than suspicion or disappointment before they will order a full trial.
The Alberta Court of Appeal addressed this issue in McKay v. Olsen, 2024 ABCA 90. The decision provides important guidance on when a will challenge warrants a trial and when a court can resolve the matter based on the existing evidence.
The Background
The dispute involved two siblings contesting their late mother's will.
An earlier will divided the estate equally between the children. Several years later, the mother signed a new will that left the residue of her estate to one child.
After the mother's death, the disinherited sibling challenged the will, alleging concerns about undue influence and testamentary capacity.
The estate's primary asset was the mother's residence, making the outcome highly significant for both parties.
The lower court concluded that the matter should proceed to a trial process. The Alberta Court of Appeal disagreed.
Not Every Will Challenge Requires a Trial
One of the most important principles confirmed by the Court is that a will challenge is not automatically entitled to a trial.
Trials are expensive, time-consuming, and often emotionally draining for families.
Courts are increasingly encouraged to resolve disputes through proportional procedures whenever possible.
Before directing a will dispute to trial, a court must determine whether there is sufficient evidence to justify that step.
If the available evidence allows the court to fairly determine the issues, a trial may not be necessary.
Suspicious Circumstances Still Matter
In will disputes, courts often examine whether there are "suspicious circumstances" surrounding the preparation or execution of a will.
Examples may include:
- Significant changes from previous wills;
- Evidence of cognitive decline;
- A beneficiary's involvement in arranging the will;
- Unusual estate distributions; or
- Concerns regarding undue influence.
However, suspicious circumstances are only the starting point.
The court must ultimately assess whether the evidence is strong enough to justify further litigation.
A red flag alone does not invalidate a will.
A Major Change in a Will Is Not Enough
A key issue in McKay v. Olsen was the substantial change from the earlier will.
One child moved from receiving half of the estate to receiving the entire residue.
While that change understandably raised questions, the Court found there was evidence explaining the deceased's decision.
The mother had reportedly expressed the same intention years before the later will was signed. Other family members were aware of that intention long before any challenge arose.
Because there was evidence demonstrating a consistent desire to change the distribution, the change itself was not enough to establish undue influence.
This is an important point for families. Courts recognize that individuals are free to change their minds and alter their estate plans as circumstances evolve.
Beneficiary Involvement Does Not Automatically Prove Undue Influence
The case also involved evidence that the beneficiary helped arrange the deceased's visit to a lawyer and paid the lawyer's account.
Many people assume that any involvement by a beneficiary proves something improper occurred.
The Court rejected that approach.
What matters is whether the beneficiary improperly influenced the testator's decision.
In this case, the lawyer met privately with the deceased, obtained instructions directly from her, and was satisfied that the instructions reflected her wishes.
The Court found no evidence of actual coercion, manipulation, or improper pressure.
Helping an elderly parent attend a lawyer's office is not, by itself, evidence of undue influence.
Capacity Concerns Require Reliable Evidence
Another issue involved allegations that the deceased lacked testamentary capacity.
Medical records referenced mild dementia and other cognitive concerns. However, the Court emphasized that the crucial question is whether the person had testamentary capacity when the will was signed.
The evidence supporting incapacity was weak and inconclusive.
Importantly, one physician's opinion had not been properly introduced as expert evidence and was ruled inadmissible.
The Court also noted that the lawyer who prepared the will and the paralegal who witnessed it observed no concerns about the deceased's understanding or capacity at the time of execution.
As a result, the evidence was insufficient to overcome the legal presumption that a properly executed will is valid.
The Importance of Proper Expert Evidence
The decision also serves as a reminder that expert evidence must comply with procedural rules.
The Court rejected reliance on an unsworn doctor's letter because it had not been properly introduced as expert testimony.
In estate litigation, medical evidence often plays a critical role.
However, courts require that expert opinions be presented in an admissible form so that parties have a fair opportunity to test and challenge those opinions.
Key Takeaways
A Significant Change in a Will Does Not Automatically Create a Valid Challenge
Disinheriting a family member may raise questions, but it is not proof of undue influence or incapacity.
Beneficiary Assistance Is Not Necessarily Improper
Helping arrange meetings, transportation, or legal appointments does not automatically establish undue influence.
Capacity Must Be Assessed at the Relevant Time
The critical question is whether the testator had capacity when the will was signed.
Expert Evidence Must Follow the Rules
Courts may refuse to consider medical opinions that are not properly introduced.
Trials Are Not the Default
If the evidence is sufficient to resolve the dispute fairly, courts may determine the matter without a full trial.
The Bottom Line
McKay v. Olsen demonstrates that Alberta courts will carefully examine the evidence before directing a will dispute to trial. A dramatic change in a will, family disappointment, or generalized concerns about capacity are not enough on their own. The court requires meaningful evidence of suspicious circumstances that genuinely call the will's validity into question.
For individuals challenging a will, and for those defending one, the decision highlights the importance of credible evidence, proper expert reports, and a clear understanding of the testator's intentions.
MerGen Law is Here to Help You
At MerGen Law, we assist clients throughout Alberta with will challenges, formal proof of wills, capacity disputes, undue influence claims, estate administration issues, and estate litigation. Whether you are questioning the validity of a will or defending a loved one's estate plan, we are here to help.
This article is intended for informational purposes only and does not constitute legal advice. Individuals facing concerns about estate litigation trials should seek professional advice tailored to their specific circumstances.