Strengthening Wills done at Hospital from Challenge
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
Strengthening the legitimacy of a will that was signed by an individual in the hospital or a hospice, and rebutting adverse court actions, comese from understanding where those legal challenges emanate. And most challenges a will drafted or signed during a hospitalization (or while in a hospice) tend to be focused on the legal doctrine of testamentary capacity. In these circumestanes, the challengers (those seeking to defeat the validity of the will) are seeking to prove that the testator lacked the "sound mind" necessary to understand the nature of the document, the extent of their property, and the moral claims of their family members. In a hospital setting, this often involves analyzing medical records to determine if the deceased was suffering from delirium, heavy sedation, or cognitive impairment caused by their illness. Courts look for evidence that the testator was unable to appreciate the consequences of the changes they were making or that they lacked the mental "disposing power" required by law.
Another common strategy involves alleging undue influence, which occurs when a person is coerced into making a will that does not reflect their true wishes. Hospitalized patients are often in a state of extreme physical and emotional vulnerability, making them more susceptible to pressure from caregivers, family members, or friends who may be isolating them. To succeed on this ground, the challenger must show that the influence was so powerful it "overbore" the testator’s free will, essentially turning the document into the will of the influencer rather than the deceased. While simple persuasion is legal, the "poisoning" of the testator's mind against other relatives or the use of threats regarding care are viewed as grounds for invalidation.
The challengers' lawyers frequently use the doctrine of suspicious circumstances to shift the burden of proof back to the person defending the will (the propounder). Normally, if a will is properly signed and witnessed, the law presumes the testator had capacity; however, if the will was made in a hospital, involves a radical departure from previous plans, or was prepared by a beneficiary, the court may declare the circumstances "suspicious." Once this label is applied, the person trying to uphold the will must affirmatively prove that the testator fully understood and approved its contents. This higher evidentiary bar makes it much easier for challengers to defeat a will if there is a lack of clear, independent testimony from the drafting lawyer or medical staff.
Defeating a hospital-made will also often relies on identifying procedural irregularities or a lack of "knowledge and approval." Alberta law requires strict formalities, such as the will being signed in the presence of two independent witnesses who are not beneficiaries. In a chaotic hospital environment, these rules are sometimes rushed or ignored, providing a technical opening for a challenge. Even if the formalities were met, a challenger can argue that the testator did not "know and approve" the contents, for example, if the will was read to them while they were drifting in and out of consciousness or if they were unable to read the fine print due to physical distress.
Finally, individuals may attempt to vary the will if it fails to provide adequate maintenance and support for a spouse, adult interdependent partner or dependent child (in Alberta). However, unlike other provinces, Alberta does not provide for a moral claims avenue for independent adult children (as distinguished from BC's Wills, Estates and Succession Act); however, this does not preclude independent adult children who have been disinherited, or otherwise feel short-changed from pursuing alternate legal avenues for challenging the will, such that it is important that individuals in hospital or hospice have the appropriate independent legal representation when undertaking enacting a will under these particular circumstances.
So if you or a loved one has been admitted to Calgary’s Foothills Medical Centre, Peter Lougheed Centre, Rockyview General Hospital, South Health Campus, Tom Baker Cancer Centre, Cochrane Community Health Centre, Airdrie Community Health Centre or other medical facility, hospice or seniors home in metropolitan Calgary, Alberta, you need to ensure that your own (or your loved one’s) last will & testament, power of attorney and personal directive is up-to-date and reflects your current intentions. If you or a loved one requires a hospital visiting lawyer to attend to a last will & testament, power of attorney, personal directive, trust or other estate planning document, contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.*
* Please note that travel time and attending at the hospital / hospice / seniors home will incur additional cost and expense as compared to comparable legal work on wills, trusts, personal directives and powers of attorney. Click here for more information about hospital appointments.
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