One of the requirements in determining the validity of a will is that the testator have the legal capacity to write it. A recent case decided by the Court of Appeal for Ontario looked at whether a testator’s alcoholism prevented him from having the legal capacity to create will, one that excluded his wife.


The testator and his brother were joint owners of a farm that had been in their family since 1958. They had mirror wills – personal and corporate – which were designed to leave their equal interests in the farm to one another. The testator’s first will was executed in 2000, before he met his wife. His second will, executed in 2009 also left out his wife, though he did name her as the sole beneficiary of a Registered Retirement Income Fund (“RRIF”) worth about $123,000 at his time of death. The testator was an alcoholic. While he was able to work during the day, the evidence presented at trial established he would drink until passing out each night. His brother testified the testator purchased 40 ounces of liquor each day. No evidence presented at trial suggested he was drinking or unable to function when he signed his wills. The testator suffered a heart attack in 2007. During his recovery he experienced confusion and difficulty communicating. His doctor wrote “The main problem was with cognitive dysfunction and confusion disorientation thought to be due to organic brain syndrome secondary to alcohol abuse. Over the next week or two his sensorium cleared somewhat. [Emphasis added.]” The testator had another heart attack in 2010, and died of a stroke on December 26, 2011. When his wife discovered she had been left out of her husband’s will she challenged its validity.

The trial and grounds for appeal

The testator’s wife attempted to introduce a doctor as an expert witness for the trial. However, the opposing lawyer objected, and the judge sided against the wife, not allowing the wife to call the witness. The trial judge ultimately ruled against the wife, finding the testator to have had testamentary capacity at the time the wills were executed. The wife appealed, arguing the trial judge erred in ruling the doctor’s evidence inadmissible. She also claimed the trial judge erred in finding her husband knew and approved of the content of his wills; that he had testamentary capacity and that the wills were properly executed.

On appeal

The court focused on the evidence the wife wanted to present, evaluating it against the evidence heard at trial. The court agreed that the testator was an alcoholic, but it also found him to be able to function despite his alcoholism, writing: “Despite his alcohol use, the evidence established that, around the time he executed his 2009 wills, (the testator) was able to function properly at work and in his business dealings. A parade of witnesses from the local farming community testified that, while they knew that (the testator) liked to drink, they noticed nothing wrong with his cognitive functioning.” The court’s problem with the doctor’s evidence was that it was written without having met the testator. Instead, the doctor’s opinion was based on medical reports and hospital records. It was this information that led the doctor to conclude that the testator likely had “organic brain syndrome” and lacked the cognitive ability to have testamentary capacity when signing his 2009 will, stating the testator would have been drinking or suffering from alcohol withdrawal at the time the wills were executed. The court found the doctor’s evidence to be speculative. There had been no evidence about a decrease in his cognitive ability outside of the time period following his heart attack, which occurred two years prior. The court also referenced the testator’s brother’s evidence pertaining to the testator’s capacity during the signing of the wills and found that his evidence along with other evidence presented supported the position that the wills were valid. The court dismissed the appeal. Having a current, valid will is something everyone should do to protect your family in the event of your death. The experienced estate lawyers at NULaw and its predecessors have been helping clients plan for their future since 1953. Whether your will is simple or complex, we can help you achieve your long-term goals and objectives, and plan ahead to protect your loved ones. Contact us online or by phone at 416-481-5604 to schedule a consultation today.

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