It’s not uncommon for people to wait longer than they should to write their wills. An unfortunate possible result of this could be that the will is challenged due to testamentary capacity. This is what happened in a recent decision from the Ontario Court of Appeal, in which the will of someone who died as a result of a brain tumour was successfully challenged.
The testator was a successful businessman who was married for 30 years and had one child, who was 45 years old at the time of the trial. The testator and his wife separated seven years before his death but they did not divorce. He lived with his common law partner during those seven years.
The testator suffered a seizure on July 20, 2010. Following the seizure, he was diagnosed with brain cancer. Following the diagnosis, he made two wills. The first will was signed on August 16, 2010, and the second was made on September 8, 2010. In the first will he left the majority of his estate to his common law partner, excluding his only child. The second maintained this exclusion, but provided legacies a friend from Quebec and his former business associate, and a number of friends.
The testator attempted to make two new wills following the second one, but he did not sign them. He died on December 24, 2010.
Following the testator’s death, his daughter challenged the wills, claiming that the testator did not have the necessary testamentary capacity to make the two wills he signed after receiving his diagnosis.
During the original trial the court heard from a number of witnesses who spoke to the testator’s behaviour during that time. These witnesses included “the daughter, the estate trustees, former colleagues and friends, the former wife, the lawyers who prepared the wills, the lawyer who prepared a separation agreement between the testator and his wife, various treating doctors and experts called by each side.”
The trial judge applied the test for testamentary capacity and concluded the testator was not aware of the nature and extent of his assets at the time he made the wills. The judge also included he did not know who was going to benefit from his wills. The entire estate, as well as costs totalling more than $300,000 were awarded to the daughter.
The trial judge’s decision was appealed by the trustees, but the court saw no palpable errors of fact or errors in law with the judge’s finding. In it’s decision, the court wrote,
“In the case at bar, the trial judge found that the estate trustees were adversarial and unreasonable in refusing to consider offers of settlement that were less than the result obtained and that they took unreasonable positions such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial. Both estate trustees were responsible in carrying the litigation forward. There is no reason to interfere with the exercise of discretion of the trial judge.”
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