In a previous post, we blogged about the requirements for a valid will. One of those elements is testamentary capacity, meaning that the will-maker must have the necessary mental capacity to understand the nature of their property and provide instructions regarding preparation of the will.

Lack of testamentary capacity is a common basis which individuals will apply to challenge a will on. In a recent case before the Ontario Superior Court of Justice, a son challenged his father’s testamentary capacity with respect to his will. The son claimed that the father lacked legal capacity to sign the will, however, the testator’s common law wife claimed that the testator signed the will at the hospital in the presence of two witnesses. Upon review of contradictory evidence, the Court concluded that the will was invalid.

Testator has stroke on holiday

In the matter of Riddle v. Nielsen, the applicant, Mr. Riddle, sought a declaration from the Court that the last will and testament of his father, dated May 17, 2019, was invalid due to his father’s lack of capacity on the date of execution. The testator had three other children in addition to the applicant, namely “SM”, “JR”, and “LR”. SM filed an application in support of Mr. Riddle’s application.

The testator suffered a stroke, heart attack and seizure in March 2019 while he and his common-law partner and the respondent, Ms. Nielsen, were in Myrtle Beach for a holiday. The testator underwent two surgeries at a hospital in Myrtle Beach where he remained for three weeks until his condition had stabilized and he could return to Canada. The testator was transferred to a hospital in Kingston on April 1, 2019, where he remained until he passed away on June 12, 2019.

Testator provided instructions to lawyer before trip

A lawyer who the testator instructed to prepare his will stated that he received instructions two weeks before the testator left for Myrtle beach, however, no plans were made for the execution.

While the testator was in the hospital in Kingston, Ms. Nielsen picked up the will which the lawyer had drafted. The lawyer provided Ms. Nielsen with instructions regarding execution of the will and she took it to the hospital.

Ms. Nielsen stated that the testator signed the will on May 17, 2019. The testator’s signature and initials were on each page, and two witnesses were also present.

Testator’s Common Law Partner Claimed Testator Sat Up During Will Signing

Based on the requirements under the Succession Law Reform Act, the Court stated that the onus was on Ms. Nielsen to prove that the testator did in fact sign the will in the presence of two witnesses. She told the Court that she arrived at the hospital on the morning of May 17, 2019, at about 10:40 am and stayed until 11:45am, during which time the testator was sitting up in bed, but was propped up by pillows while he signed the will.

The hospital records, however, contradicted the evidence provided by Ms. Nielsen and the two witnesses, as they showed that from 10:30am to 11:25am that morning, the testator was lying on his left side before a nurse turned him onto his right side where he stayed until 1:00pm.

Hospital Records Show Testator was Paralyzed

The medical records also stated the testator suffered from “left-sided hemiparesis and aphasia,” which meant that the left side of his body was completely paralyzed. Therefore, he could not have signed any documents while laying on his right side.

A physician who provided care to the testator opined to the Court that the testator did not have the cognitive or physical capacity to sign the will. In the morning of May 17, 2019, a CAM test was performed for the testator which required him to squeeze a certain hand to answer “yes” and “no” questions. The records showed that the testator was unable to squeeze fingers appropriately, and was also unable to perform tasks such as picking up a knife or fork or brushing his teeth.

Court Rejects Respondent’s Evidence

Upon review of the evidence, the Court was satisfied that the medical evidence provided by the hospital and treating physician greatly outweighed the evidence provided by Ms. Nielsen and the witnesses. Further, the Court was unable to confirm that the signature on the will was that of the testator and therefore declared the May 17, 2019, will invalid.

Derfel Estate Law can help you with challenges to the validity of a will

At Derfel Estate Law, our experienced team of estate lawyers provide skilled advocacy for clients involved in a variety of estate and trust disputes, including Will challenges and disputes related to executors or trustees. We understand that estate litigation can be lengthy, emotional and costly and aim to ensure that clients remain informed throughout the process. We proudly serve clients throughout the Greater Toronto Area and across Ontario. To schedule a confidential consultation regarding your estate litigation concerns, contact us online or by phone at 416-847-3580.