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Estates - Wills - Testamentary Capacity

. Roe v. Roe

In Roe v. Roe (Ont CA, 2024) the Court of Appeal considers issues of testator capacity:
[9] The application judge held that Mark had established that the 2005 Will was executed under suspicious circumstances. She applied the test from Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, and based her determination on the timeline of events leading up to the 2005 Will – namely, the proximity of the will change to Beverly’s early Alzheimer’s diagnosis, the total disinheritance of Mark who previously had a close relationship with his mother, and allegations of elder abuse against Rick. The primary issue then became whether the respondents had proven on a balance of probabilities that Beverly was not operating under insane delusions that affected her disposition of her assets.

[10] Regarding insane delusions, the application judge adopted the approach of Cullity J. in Banton v. Banton (1998), 1998 CanLII 14926 (ON SC), 164 D.L.R. (4th) 176 (Ont. S.C.) that the fundamental question regarding the issue is “whether the belief should be characterized merely as being quite unreasonable, on the one hand, or as something that, in the particular circumstances, no one ‘in their senses’ could believe.” Further, she relied on the following heuristic from Boughton v. Knight (1873) L.R. 3 P. & D. 64 (U.K.), at 68: “Can I understand how a person in possession of their senses could have believed the fact or facts that has impacted the will-making?” The application judge answered that question in the affirmative and found that Beverly was not suffering from insane delusions.


(2) Undue Influence

[15] Rick lived with his mother for virtually his entire life, until she died. Mark, Chris, and to a lesser extent Randy, agreed that Rick could be a difficult person and could be intimidating and controlling of the family. It is also not disputed that Rick drove Beverly to the lawyer to prepare the 2005 Will.

[16] Mark submitted that Beverly was unduly influenced by Rick to change her will. The application judge rejected that submission. She held that Beverly was able to manage her relationship with Rick, despite his alleged difficult personality. On appeal, Mark asserts that the application judge erred in her undue influence analysis by ignoring relevant factors in the jurisprudence on undue influence and by conflating allegations of elder abuse with undue influence. We are not persuaded by this submission.

[17] Mark cites Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.) as an example of the factors that should be considered in an undue influence analysis. There, the court helpfully provided a list of points it considered in its undue influence analysis, including the testator’s isolation, the failure to explain why certain family members were not named as beneficiaries, the existence of inter vivos gifts, the circumstances surrounding the creation and execution of the impugned will, and statements made by the deceased that he feared the respondent.

[18] Contrary to Mark’s submission, there is no set list of considerations that must be considered in all cases when considering an allegation of undue influence. Instead, the analysis of the issue is case specific and should examine the circumstances to understand the nature of the relationship between the alleged influencer and the deceased.

[19] In the case at bar, the application judge focused on the evidence of Mark’s expert on elder abuse to determine whether Rick unduly influenced Beverly to disinherit Mark. There was nothing impermissible in the application judge relying on this evidence to understand the nature of the relationship between Rick and his mother. She concluded that that the facts did not support the inference that Beverly was susceptible to Rick’s influence and that Beverly was not particularly vulnerable to him. The application judge also found that “Beverly and Rick had a symbiotic relationship that seemed to work” and that she was able to manage Rick. We see no error in that analysis, which was well rooted in the evidence.

(3) Understanding of Assets

[20] Finally, there is the issue of Beverly’s understanding of her assets. The application judge found that Beverly had sufficient knowledge of her assets to instruct counsel. In so finding, she relied on the evidence of the geriatric psychiatrists called by both sides that Beverly understood her assets at the time of instructing the lawyer. She also noted that Beverly brought to the lawyer’s office a list of assets. Mark submits that the application judge erred in abdicating her function as the trier of fact in allowing the geriatric psychiatrists to decide what Beverly knew.

[21] We do not accept this argument. The application judge was entitled to rely on the evidence of the geriatric psychiatrists and conclude that Beverly understood the nature and extent of her property. A competent testator does not have to know the precise make up of her estate, only in a general way the nature and extent of her property: Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, 304 O.A.C. 349, at para. 60. There is no basis for appellate interference with this finding.
. McGrath v. Joy

In McGrath v. Joy (Ont CA, 2022) the Court of Appeal considered interesting testamentary capacity issues in a suicide situation where alcohol and drugs were involved:
[1] Shortly before committing suicide, a person wrote a suicide note which met the requirements for a holograph will. He had been drinking and using drugs the day before his death. The sole issue for the court below was whether the deceased had testamentary capacity when he wrote the suicide note. The court concluded that he did not.

[2] On this appeal, the court must revisit: (1) how to determine testamentary capacity where there are suspicious circumstances surrounding the preparation of a will, and (2) the principles governing cost orders in estate litigation.

[3] The requirements for a holograph will are set out in s. 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”):
6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

A. The Legal Principles for Determining Testamentary Capacity

[50] The legal principles for determining testamentary capacity are long-standing. They were established by the Supreme Court of Canada in Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58, in reliance on Banks v. Goodfellow, and have been applied ever since. The application judge correctly stated those principles at several places in the Reasons. For example, at para. 49 of the Reasons, relying on para. 14 of Hall v. Bennett Estate, he states that to make a valid will, a testator must have a “sound disposing mind” and to have a sound disposing mind, a testator must:
a. understand the nature and effect of a will;

b. recollect the nature and extent of his or her property;

c. understand the extent of what he or she is giving under the will;

d. remember the people that he or she might be expected to benefit under his or her will; and

e. where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.


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Last modified: 12-03-24
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