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Client Work

Will set aside due to incapacity for The Jean Ferland estate

Fasken
Reading Time 2 minute read Subscribe
Client

Confidential Client

The decedent had signed a will in 2007 a few days after his wife’s death, while he was receiving psychiatric and other care at the hospital. That will benefitted the son of the daughter of the former spouse of the son of the decedent’s spouse. The latter was unknown to the nieces and nephews of the decedent. One of the major challenges faced by the nieces and nephews was to demonstrate under difficult circumstances the decedent’s incapacity. Indeed, owing to his major depression, the decedent had gradually isolated himself from the rest of his family, so much so that the nieces and nephews were no longer visiting him at the time the will was signed, and the few brothers or sisters who still visited him had died before he did. Afterwards, the defendant, the notary who received the will and an expert testified that the decedent did have the requisite capacity at the time of his death. In a majority of decisions, the testimony of the notary is a determining factor in the court’s decision. However, the court was convinced that the decedent was generally incapable at the time of signing the will. The court then dismissed the testimony of the defendant and the notary due to lack of credibility. The court also favoured the testimony of the plaintiffs’ expert owing to his expertise and the relevance of his comments. This is a major victory, seeing as the burden of proof lies on the plaintiffs who, despite the obstacles, nonetheless managed to convince the court to set aside a notarized will. The judgment can be found here (only available in French).

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