Estate litigation can involve highly contentious proceedings, particularly among family members. When a person, particularly a child, feels as though they have not been adequately provided for or have been left out of the Will, feelings can get hurt, and proceedings can become emotionally driven. That individual may then commence proceedings against the estate to challenge the validity of the Will in question or to raise issues regarding the testator’s capacity. However, these challenges are not taken lightly by the courts.
This issue arose in a recent case before the Ontario Court of Appeal, where the deceased had disinherited two of her children, leaving one child as the sole beneficiary and estate executor. The testator’s daughter commenced an application seeking a declaration that the Will was invalid, which was initially dismissed by the Supreme Court of Ontario. The decision was appealed to the Ontario Court of Appeal.
Mother dies of cancer, disinherits two of her three children
In Di Nunzio v. Di Nunzio, the testator passed away at age 80 on July 20, 2018. She prepared a Will dated March 1, 2017, which appointed one of her daughters as sole beneficiary and executor of her estate. The testator expressly disinherited her other daughter (the appellant in this case) and son.
The Court issued a certificate of appointment on October 23, 2018 to the executor. The appellant commenced an application on October 29, 2018, claiming that the testator’s Will was invalid based on suspicious circumstances, lack of capacity, and undue influence.
Lawyer who drafted Will did not believe capacity was an issue
In the years leading up to her passing and throughout her illness, the executor and the testator’s son were actively involved in their mother’s care, with the executor acting as the testator’s primary caregiver. The testator named the executor her power of attorney for personal care and property.
In January 2017, the testator was referred to the lawyer who prepared her Will. The lawyer was not concerned about capacity when he met with and obtained instructions from the testator. The lawyer claimed that the testator was clear about how she wanted her estate distributed and believed that the executor would take care of the testator’s son with her share of the estate. Her choice to not include her other daughter (the appellant) was based on that daughter’s previous issues with drugs and money.
Despite not being well enough to travel on the date scheduled to execute the Will at the lawyer’s office, alternative arrangements were made, and the testator appeared alert and her usual self.
Testator and disinherited daughter had rocky relationship
The testator had three prior Wills. A Will created in 2014 appointed both daughters as estate trustees, with a Henson Trust set up for the son. A subsequent Will in 2015 appointed the executor as sole executor, with the estate distributed equally among her three children. When the testator advised the lawyer that drafted the 2014 Will that she wished to remove one of her daughters as executor and beneficiary in her revised Will, he required her to submit to a capacity assessment. This decision was based on the daughter taking a large sum of money from the testator’s bank account without permission. Ultimately, the daughter (appellant in the current case) was removed as executor and power of attorney but remained a beneficiary.
Evidence in both the son and executor’s affidavits stated that the appellant and her mother had a rocky relationship for many years due to her history of drug and alcohol abuse and issues with money. While the appellant did not deny these statements, she claimed that the relationship was amicable during the time period in question.
Application judge held presumption of testator’s capacity not rebutted
The disinherited daughter applied for an order from the Supreme Court of Ontario revoking the Certificate of Appointment and requiring that the Will be proved and declared invalid and of no force. She put forward three affidavits of her own, affidavits of two friends, and three expert reports of a handwriting examiner in support of her claim.
The other daughter (the executor) provided an affidavit of her own and of the son, along with affidavits from the lawyer who drafted the testator’s Will and the two witnesses to the Will’s execution.
The Court began by referring to the decision of Vout v. Hay, which held that if a Will is executed and complies with the formal requirements and the testator knew its contents, a rebuttable presumption arises that the testator had the necessary capacity. The Court found that, based on the evidence, the disinherited daughter could not rebut the presumption and could not establish suspicious circumstances. She appealed this decision.
Court of Appeal upholds application judge’s findings
The Court of Appeal dismissed the application and upheld the application judge’s initial findings. The Court found that the application judge applied the principles from Vout v. Hay appropriately and gave sufficient consideration to the evidence in reaching their decision.
The Court found the application judge provided adequate reasons for accepting the evidence submitted by the executor, establishing that the testator had sufficient capacity when she prepared her Will (aside from her illness and the effects of her medication and treatment). The Court further affirmed the application judge’s finding that the appellant and her mother had a relationship that “had been tumultuous and difficult for a very long time”. As a result, the appellant’s evidence could not support her claims of incapacity and undue influence.
Argument for public policy considerations rejected
The appellant also claimed that the application judge erred in not finding a public policy consideration to justify payment of her costs from the estate. As per the case of MacDonald Estate v. Gooderman, if there are ambiguities in a Will that give rise to litigation, it is appropriate for the testator (through their estate) to bear those costs.
The Court of Appeal stated that because the Will was valid and no issues were found related to the testator’s capacity, the public policy considerations set out in MacDonald Estate were not applicable in these circumstances. Therefore, the appellant was responsible for her own costs.
Derfel Estate Law in Toronto Represents Clients in Contentious Estate Litigation Matters
The experienced estate litigation lawyers at Derfel Estate Law in Toronto act on behalf of executors to defend various estate litigation matters, including Will challenges and capacity issues. Managing estate administration can be a tedious and confusing responsibility, particularly when disputes arise among family members, which is why we are here to help. To learn how we can assist you with your estate litigation dispute, call our office at 416-847-3850 or contact us online.