Law Practice, Litigation

I want to see the Will!

Oct 7th, 2014

By Barry Landy

The baby-boomers have grown up. Some got married; some divorced; some re-married; some had second families; some fought with their parents; some fought with their siblings. It seems like the exception to the rule is the family that does not live with some degree of dysfunction.

And we all know that whatever degree of dysfunction exists in any family, things often come to a boiling point where a death occurs and the family or sometimes families must come to grips with the reality of what the deceased has done in his or her will, who is going to inherit and who has been cut out. When was the will made? Is it valid? Why is my brother, sister, step-mother inheriting and not me? All of these questions and so many more, generally come to the forefront, enveloped in a thick fog of emotion.

It may come as a surprise, but the Quebec Code of Civil Procedure provides as a general rule that notaries are not obliged to give copies of a will to anybody except the testator and after the testator’s death, the named heirs.

Where a person has asked a notary to see the will of a deceased person and the notary refuses, that person must ask a Judge to see a copy of the will, and must prove a current right and serious interest by demonstrating, by way of convincing facts and circumstances or by documentary evidence, that the Judge should set aside the almost sacramental rule of secrecy that applies with regard to wills.

To better understand what is involved, consider the following relatively common fact pattern: A mother dies leaving two daughters and a notarial will. One daughter inherits, the other does not. The will in question is made relatively late in the mother’s lifetime, after one of the daughters has taken the mother into her home during the last years of the mother’s life. The disinherited daughter knows that her late mother had made an earlier will where she was probably named as an heir and believes that if she is no longer an heir according to the mother’s last will and testament, that is because her sister convinced her mother illegally to cut her out of the will by exercising undue influence over the mother.

The disinherited sister contends that she has a right to see the previous notarial will signed by her mother as well as the last will and testament to evaluate what rights if any she may have, in order to avoid more lengthy and costly legal proceedings which might be unnecessary, for example, if she was not named an heir in the earlier will.

Is that a sufficient and serious interest?

According to a recent decision of the Superior Court, it seems that the answer is probably not.

The Court reasoned as follows: Often a person who changes his or her will does so for reasons known only to that person and probably does not want the change to be known to avoid conflict. During the testator’s lifetime, he or she controls the issue of access to the last will and testament and this control extends after death unless there is a serious reason, for example clear evidence that at the time the will was drafted, the testator was not in control of her mental faculties.

It follows from this analysis that where a disinherited person wants access to a testator’s will or former will, it is insufficient to allege that the reason is to allow the disinherited person to evaluate her rights or options, depending upon what an examination of the will and/or previous will might reveal.

Another typical but insufficient allegation made in a case like this is that the deceased promised the petitioning party on numerous occasions that her will left her jewelry equally to the petitioning party and her sister. The courts have held that this type of allegation, in and of itself, does not establish that the expressed intention of the deceased was true, real and reliable or that it was made at a time the deceased was actually involved in estate planning.

Similarly, it is insufficient to make vague allegations to the effect that the testator was incapable of understanding what she was doing when she made her last will and testament. More than anecdotal evidence is required to establish the testator’s state of mind and mental health around the date a will was made. This is especially so where there is another party involved, namely the person having inherited, who will likely testify that the deceased was lucid, able to give a valid testamentary consent and certainly not the object of undue influence, by way of fraudulent acts or unworthy maneuvers by anybody.

The unfortunate result of this jurisprudence is that where access to the will of a deceased is contested, there is no relatively simple and inexpensive way to obtain access, because once a Judge is seized of the matter, he or she is duty-bound to uphold the secrecy of the will, even after the death of the testator. The petitioning party must allege and prove convincing and compelling facts to lead the Judge to change his or her mind, which means a lot of work to marshal the facts, assemble the evidence, draft the motion and present the case in a compelling way, with the almost certain likelihood of legal contestation that will arise.

While I have no quarrel with the result, I must say that this case illustrates once again that the legal process seems singularly unsuited to resolve will contestation disputes. Look at things from the perspective of the testator. She would have been well advised to leave a letter addressed to her family, to be delivered after her death, explaining her will, explaining why she did what she did, and generally providing the potential legal combatants with some written explanations regarding her last wishes. This type of letter might not always do the trick, but it is certainly a better alternative than a lawsuit to obtain a copy of the will.

Barry Landy is a senior litigation lawyer at Spiegel Sohmer who focuses his practice on commercial litigation and is also experienced in the area of media law.