Black Sheep Makes Baaad Decision in Estate Litigation

Many families have them – that one sibling, cousin, or another family member who just doesn’t seem to fit in with the rest of the group. Families might have different names for them, but “black sheep” is a term commonly used. Estate litigation often brings family dynamics and the so-called black sheep into focus.

In Lyons v Todd, 2019 ONSC 2269, self-proclaimed black sheep “Bob” brought an action against his sister “Victoria” in her capacity as the estate trustee for their mother’s estate.  In her will, Bob and Victoria’s mother gave the estate’s most significant asset, a campground in Campbellville, Ontario, to Victoria. Bob challenged their mother’s will, alleging that she had been unduly influenced by Victoria and lacked the testamentary capacity required to make a will.

Victoria responded to Bob’s allegations with evidence including their mother’s medical records, financial records, and the notes from the lawyer who drafted her will. Victoria also produced a capacity assessment that had been completed by their mother 7 days before the will was signed. The capacity assessor concluded that there were no concerns with testamentary capacity or possibility of undue influence. Significantly, Bob already had a copy of the capacity assessment before he commenced his application to challenge the will.

Bob followed his challenge to the will with a year-long campaign of harassment of Victoria through social media and by telephone, in which he made serious allegations and threats against her followed by apologies and pleads to settle. Eventually, Bob abandoned his challenge to the will and Victoria brought a motion for personal costs against him.

Victoria had incurred substantial legal expenses to respond to Bob’s application, which she argued had been made in bad faith. She argued that he did not bring the application because he had an honest belief in the invalidity of their mother’s will, but simply because he could and because it would provide an opportunity to impugn his sister’s character. Bob argued that his challenge to the will was not frivolous or vexatious and that his harassment of Victoria should be given little consideration. He argued that as the black sheep of the family, he had encountered long-standing emotional and family conflict.

The Court found that Bob’s challenge to the will was vexatious and that his conduct was vindictive, reckless, and improperly motivated. In the result, the Court awarded Victoria $61,651 in costs, to be paid by Bob personally.

What can we learn from Bob and Victoria? As always, the decision to contest a will based on lack of testamentary capacity or undue influence must be made carefully and based on honest belief given the available evidence. If you or a family member are facing a contested will as the Personal Representative, or if you are considering challenging a will on any grounds, the estate litigation group at Vogel LLP is prepared to assist you with your legal needs.