Disinherited. A Grandchild Scorned?
Finding out you have been disinherited can be a painful experience. The appellant in Logan Estate (Re), a 2021 case from the Court of Appeal of Alberta (“ABCA”), must have thought so when she found out she was cut out of her grandmother’s will. However, not all was as it first appeared.
Velma Logan had six children, one of whom was Bonnie Balanko, who was married to Al Balanko. Bonnie and Al had two children, one of whom was Jody Balanko. Mrs. Logan passed away in October 2016. By then, Bonnie had passed away in 2011. Al would continue living until 2020.
Mrs. Logan’s first will, from 2010, distributed her estate equally among all her children and their heirs. However, she changed her will in 2014 to remove Bonnie’s family and kept the distribution the same for her final will of February 2016. The 2016 will was probated in July 2017.
To avoid losing out on a potential $60,000 inheritance, Jody challenged both the 2014 and 2016 wills and applied to the Court of Queen’s Bench of Alberta (“ABQB”) in May 2018 to have the grant of probate set aside. To do this, she would have to rebut the presumption that the 2016 will was valid.
To rebut it, Jody alleged suspicious circumstances existed surrounding the creation of the 2014 and 2016 wills. She claimed Mrs. Logan’s other children were exerting undue influence over Mrs. Logan as revenge for a falling out between Jody and the rest of the family. She alleged Mrs. Logan did not legally make the 2014 or 2016 wills because Mrs. Logan lacked testamentary capacity by being legally blind, depressed and having suffered a small stroke. (Testamentary capacity refers to the mental ability to know what property one owns and who it should go to, to know what the will says and approve of its contents, and to put these together into a coherent plan.) Jody also alleged there was fraud or at least a mistake, owing to Mrs. Logan instructing her lawyer while vulnerable and under undue influence.
The evidence Jody put forward to corroborate these claims was an $85,000 invoice Al sent to the Estate in January 2017 after the contents of the 2016 will were revealed. Jody claimed this showed how incensed Al was at being disinherited after providing investment advising services for years to Mrs. Logan. Jody also had a very short video of Al, possibly recorded in September 2017, where she asked if he had anything to do with Mrs. Logan’s will changes. Al denied it. However, he was already suffering from dementia at the time.
The Estate presented compelling evidence in response. Mrs. Logan’s doctor, who attended to her between July 2015 and October 2016, wrote an expert report in December 2018 stating he had no concerns at all about Mrs. Logan’s capacity from the time she wrote her 2016 will. He was so confident in her capacity that he never thought to assess it. The lawyer who wrote Mrs. Logan’s 2014 and 2016 wills did thoroughly assess her capacity on both occasions and took extensive notes. He found no issues with her capacity at all. In fact, the reason Mrs. Logan gave to her lawyer for disinheriting Bonnie’s family was the same both times – Al asked her to do it because his family had plenty of money already.
Unfortunately for Jody, the Estate had much more convincing evidence. Further, the Alberta Evidence Act prohibits a court from siding with someone challenging a will based on that person’s own evidence unless that evidence is corroborated by other material evidence. In 2019, the ABQB found Jody had not corroborated her claims, sinking her case. Without corroborating evidence, there was no genuine issue for trial. In 2021, the ABQB agreed.