Today’s blog was written by Jenna Ward, Articling Student, Fasken Martineau DuMoulin.

A recent case of the Court of Appeal for Saskatchewan has emphasized the significance of first, the relationship between a testator and his or her lawyer and second, the experience and tenure of such lawyer in assessing testamentary capacity and by extension, in determining the validity of a will.

Bachman v. Scheidt, 2016 SKCA 150

Bachman v. Scheidt (“Bachman”) is a decision of the Court of Appeal for Saskatchewan that was released in November of 2016. The appellant, Janet Bachman, daughter of the testator of the will at issue, requested that the will be declared invalid on the grounds of undue influence on the testator by her brother, Calvin Scheidt and a lack of testamentary capacity of her father.

Background

In 2006, the testator began to exhibit confusion over everyday tasks. In 2007, he met with a specialist. The specialist diagnosed the testator as having mild dementia but noted that he continued to function independently in all activities of daily living. In September of 2009, the testator was diagnosed as having mild to moderate dementia, however once again, the specialist noted his continued ability to function independently.

In 2009, the testator designated Calvin as his power of attorney with Janet as the alternate. That year, the testator also revised his will so that Calvin would receive certain farmland (the “2009 Will”). Under a previous will, such farmland was to be given to Janet. When the testator died in June of 2014, Janet brought an application alleging that the testator did not have the necessary testamentary capacity to execute the 2009 Will.

The Decision

In deciding that there was no genuine issue of testamentary capacity and undue influence, the court placed emphasis on the evidence of Kenneth Neil, the testator’s lawyer. The reasons Mr. Neil’s evidence carried so much weight include the following:

• Mr. Neil had practiced for over 25 years, executing hundreds of wills each year, most of which were for elderly clients;
• Mr. Neil had a nearly 30-year relationship with the testator and as such, was personally familiar with the testator’s personality and behavior;
• Mr. Neil was aware of the testator’s dementia;
• Mr. Neil received the testator’s instructions directly and personally attended the execution of his will;
• Mr. Neil found the testator to be aware of his property and beneficiaries and that he was capable of providing instructions for property distribution. Further, he saw no evidence of Calvin exerting any influence on his father; and
• Mr. Neil recorded detailed notes of his observations and interactions with the testator and Calvin.

The Lawyer-Client Relationship

The evidence of the testator’s lawyer was pivotal in the court’s decision to uphold the will. The court was able to look to and place weight on the lawyer’s evidence because of the ongoing interactions he had with his client over many years. It was the length, quality and personal nature of the relationship that made the lawyer qualified to assess issues such as diminished testamentary capacity and undue influence. In a time where emails and phone calls have replaced face-to-face meetings, this case acts as a reminder of the critical importance of a personal and long-standing relationship between lawyer and client.