Generally, testamentary capacity is established where the testator:

  1. Understands the nature and effect of the will;
  2. Recollects the nature and extent of his or her property;
  3. Understands the extent of what he or she is giving under the will;
  4. Remembers the people he or she might be expected to benefit under his or her will; and
  5. Understands the nature of the claims that may be made by persons he or she is excluding under the will.

A recent Ontario Court of Appeal decision had to determine the validity of wills and the testamentary capacity of a testator suffering from chronic alcoholism.

The Facts

The testator, Jack, and his brother Noel jointly owned a farm property that had been in their family since 1958. In 2009, they executed mirror wills – personal and corporate – leaving their equal interests in the farm to each other. At the time of Jack’s death in 2011, he had been married to Loretta for 11 years.

While Jack did designate Loretta as the sole beneficiary of a RRIF valued at $123,000 at the time of his death, she was otherwise not included in either of his wills. His first will had been executed in 2000, prior to their marriage, and the second will had been executed in 2009.

At trial, Loretta argued that 2009 will was not valid because Jack lacked testamentary capacity and the wills were not properly executed. Jack had suffered a heart attack in 2007, prior to the execution of the 2009 will, and had a well-known problem with excessive alcohol intake. Loretta attempted to introduce evidence through expert testimony to prove that Jack lacked testamentary capacity due to “organic brain syndrome”. The expert had never personally examined Jack and based his opinion on medical records; the trial judge found that the expert opinion was speculative at best. Therefore, the trial judge did not allow the introduction of this expert evidence because the opinion did not provide any assistance to the court.

Ultimately, the trial judge found that Jack’s wills were properly executed, that he knew and approved of their contents, and that he had testamentary capacity at the time they were executed.

The Appeal Decision

In the appeal, Loretta contended that the trial judge erred in ruling that the expert evidence was inadmissible. She further argued that the trial judge erred in finding that: Jack knew and approved of the contents of his wills; Jack possessed testamentary capacity; and the wills were properly executed.

On the first issue, the court found that the trial judge had not erred in using her discretion to exclude the expert evidence. It found that trial judge was entitled to conclude that the testimony would be of no value in resolving the issue of testamentary capacity.

Regarding the validity of the will, the court stated that, upon proof that the requisite formalities have been followed, there exists a presumption that the testator knew and approved of the contents and had the necessary testamentary capacity. However, this presumption is displaced when there are suspicious circumstances: (1) surrounding the preparation of the will, (2) calling into question the testator’s capacity, or (3) tending to show that the testator’s free will was compromised by coercion or fraud.

At trial, counsel for Noel had acknowledged that there were suspicious circumstances surrounding Jack’s testamentary capacity and the burden of proof fell on Noel as the propounder of wills to establish that Jack knew and approved of their contents, and that he had testamentary capacity.

After reviewing the evidence, the court found that Noel had met his burden of proof. The court agreed with the trial judge’s decision that, while Jack had his issues with alcohol, and his health suffered because of it, he was of sound mind when he executed his 2009 wills. There was no evidence Jack had been drinking prior to the execution of the wills and no evidence he was not of sound mind at the time.

The court dismissed the appeal. However, it also noted that while Loretta was not entitled to anything under Jack’s will, she may be able to make a claim under section 5(2) and 6(10) of the Family Law Act.

Get Advice

If you or a loved one are planning on the distribution of an estate in preparation for a future event such as a will, it is important to speak to a trusted legal advisor. It is usually best to plan an estate ahead of time, to foresee issues before they arise and have them handled according to the wishes of the grantor.

For assistance, Contact Mark Feigenbaum, Barrister and Solicitor online or call him at (905) 695-1269 or toll-free at (877) 275-4792