Drafting a will is one of the most important steps a person can take when creating an estate plan. No matter how large or small your estate is, a properly drafted and valid will is the best way to ensure that your property is distributed as you see fit. However, even the best wills can be challenged by people who believe they have a financial interest in an estate. However, just because a will can be challenged does not mean that any such challenges will be successful, even if there are some omissions in the will. This is demonstrated in a recent decision from the Court of Appeal for Ontario.

The Will

The deceased in the matter was an 87-year-old mother who executed a codicil (change) to her will on August 18, 2014. The codicil left the residue of her estate to one of her sons (“L”), leaving out her other son (“F”). The original trial provided evidence to suggest that the mother’s motivation was not a lack of love for F, but a belief that he was in a better overall financial position than L and leaving the residue of the estate to L would even things out between the two brothers.

The original trial lasted 10 days, with the judge ruling in favour of L after determining L had satisfied his burden of proving due execution of the codicil and knowledge of its contents. He also met the burden of proving testamentary capacity and rebutting any inference of coercion or undue influence.

The Appeal

F appealed the trial judge’s decision, arguing the judge misapprehended the evidence and erred in finding the mother had knowledge of the contents of the will when she executed the codicil. His position was that in order to have testamentary capacity, a testator must be aware of the value or magnitude of the estate. L argued that the trial judge found the mother to have had a general knowledge of her assets but not a deep enough level to satisfy testamentary capacity.

However, the court did not side with L, finding that the mother had demonstrated knowledge of her assets as detailed in the evidence at trial. The handwritten notes of her lawyer’s assistant as well as her lawyer’s statements that she was knowledgeable with respect to her assets were enough to satisfy the court.

Even if the mother did not demonstrate knowledge of her assets, the court stated that it’s not necessary to do so. A 2013 decision from the Court of Appeal for Ontario stated that “A competent testator does not have to know the precise makeup of her estate. She only need know in a general way the nature and extent of her property.

If you are considering filing an application to challenge a will, contact the estate lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.