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Estates - Wills - Challenging a Will. Schickedanz v. Schickedanz
In Schickedanz v. Schickedanz (Ont CA, 2026) the Ontario Court of Appeal dismissed an estates appeal, this brought against the finding that a "purported codicil" had "been made in circumstances of suspicion relating to Elma’s knowledge and approval of its contents, and her capacity to execute it":[2] Those four brothers, Waldemar (“Wally”), Gerhard (“Garry”), Manfred (“Fred”) and Arthur (“Arthur”) Schickedanz (collectively, “the brothers”) are the respondents in this appeal. After they disputed the purported codicil, Charlotte initiated an application to prove it. A trial was conducted. The trial judge found the purported codicil to have been made in circumstances of suspicion relating to Elma’s knowledge and approval of its contents, and her capacity to execute it. These findings placed the burden on Charlotte of proving on the balance of probabilities that Elma knew and approved of the terms of the purported codicil and had the testamentary capacity needed to create a valid testamentary disposition. The trial judge concluded that Charlotte had failed to discharge her burden on either of the issues and therefore found the purported codicil to be invalid.
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THE GENERAL LEGAL STANDARDS AND THE ISSUES
[11] There is no issue between the parties that the purported codicil complied with the formality requirements of a holograph will and contained a fixed or final expression of intention as to the disposal of property: see Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 6; Canada Permanent Trust v. Bowman, 1962 CanLII 81 (SCC), [1962] S.C.R. 711, at p. 714. Nor is there any issue about the remaining general legal principles that apply, which can be stated simply for the purpose of these reasons:. To prepare a valid testamentary disposition, a testator must: (1) know and approve of the contents of the will (the “knowledge and approval requirement”), and (2) have the capacity to execute a testamentary disposition (the “capacity requirement”). If there are circumstances of suspicion relating to either of these requirements, the burden is on the party relying on the testamentary disposition to establish, on the balance of probabilities, that the requirement is met: see Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at paras. 19-20, 26-27; Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at para. 8.
. Although the standard of proving the “knowledge and approval requirement” and the “capacity requirement” remains on the balance of probabilities where there are circumstances of suspicion, “[t]he evidence must … be scrutinized in accordance with the gravity of the suspicion”: Vout, at para. 24; see also Stekar, at para. 24.
. The test for the “knowledge and approval requirement” is “whether the testator fully understood what was in the [testamentary document] and whether the [testamentary document] as written represented the testator’s intentions”: Forde v. Dockery, 2024 ONSC 5878, at para. 97, citing Sikora Estate (Re), 2015 ABQB 374, at para. 42 and Garwood et al. v. Garwood et al., 2017 MBCA 67, [2017] 10 W.W.R. 158, at para. 18.
. The test for the “capacity requirement” was described by Gillese J.A. in McGrath v. Joy, 2022 ONCA 119, 471 D.L.R. (4th) 211, at para. 66:A testator has a sound disposing mind, if he or she: understands the nature and effect of a will; recollects the nature and extent of his or her property; understands the extent of what he or she was giving under the will; remembers the people that the testator might be expected to benefit under the will; and, understands the nature of the claims that might be brought by persons excluded from the will. . This test has been described as a “high one”: Stekar, at para. 17. That said, the inquiry into a testator’s knowledge of the nature and extent of their property does not require the testator to have an encyclopedic knowledge of their assets, or to know the precise makeup of their estate. They “only need to know in a general way the nature and extent of [their] property”: Quaggiotto v. Quaggiotto, 2019 ONCA 107, at para. 7, citing Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, 304 O.A.C. 349, at para. 60. ....
B. Did the trial judge err by applying the incorrect Standard in determining whether Charlotte discharged her burden on the “knowledge and approval requirement”?
[21] Appeal counsel argued that the trial judge erred in law by basing his finding that “Charlotte [had] not discharged the onus of establishing that Elma knew and approved of the contents of the Purported Codicil” on his conclusion that “the evidence does not show that Elma was aware of the magnitude of the residue of her estate”. He argued that the British Columbia authority[3] the trial judge relied on in treating knowledge of the “magnitude” of the gift as a requirement is not the law in Ontario. He submitted that this court held as much in Quaggiotto, at paras. 5-6. We do not read Quaggiotto as holding that knowledge of the magnitude of a gift is an immaterial consideration. What the panel in Quaggiotto rejected was “the appellant’s submission that the trial judge misapprehended the evidence”: at para. 5.
[22] Relatedly, appeal counsel submitted that in finding that there was no evidence that Elma understood the magnitude of the gift, the trial judge “effectively required” proof that Elma knew the precise value of the home farm. He argued that this was an “unreasonable burden”, contrary to this court’s holdings in Orfus Estate, at para. 60, that “a competent testator does not have to know the precise makeup of her estate” and need only know “in a general way the nature and extent of her property”, and contrary to the holding in Quaggiotto, at para. 7, that a testator need not have an “encyclopedic knowledge of her assets.”
[23] We were not persuaded that the trial judge required evidence that Elma knew the precise value of the home farm. In the impugned passage, the trial judge observed that the evidence did not show “that Elma was aware of the magnitude of the residue of her estate nor … that she appreciated the effect of the disposition made in the Purported Codicil.” When this passage is read in the context of the decision as a whole, it is evident that the trial judge’s concern was that the evidence failed to show that Elma knew that the value of the home farm had appreciated to the point where it constituted the bulk of her estate, or that giving it to Charlotte would result in an unequal division of her assets, contrary to her expressed wish to treat her children equally. The “knowledge and approval requirement” includes an assessment of “whether the testator fully understood what was in the [testamentary document]”: Dockery, at para. 97. The trial judge was entitled to find that since Charlotte had not shown that Elma fully understood that she was giving Charlotte the bulk of her estate and creating an unequal division of her property, Charlotte failed to establish that Elma fully understood what was in the purported codicil. . Shannon v. Hrabovsky [limitations]
In Shannon v. Hrabovsky (Ont CA, 2023) the Court of Appeal considered limitations in a will-challenging estates context:[19] In his reasons, the application judge concluded that Gayle’s application was not limitations-barred. He stated:[W]hile the limitation period in respect of a will challenge is presumed to commence on the date of death of a testator for the purposes of s. 4 of the Act, the “discoverability principle” [in s. 5 of the Act] is not ousted if the presumption is rebutted. ....
[52] In my view, the application judge’s conclusion that the limitations clock only started to run after Gayle confirmed both the existence and the contents of the 2007 Will accords with the approach that was taken in the two cases that he considered in relation to this issue: Leibel v. Leibel, 2014 ONSC 4516, 2 E.T.R. (4th) 268, and Birtzu v. McCron, 2017 ONSC 1420, 24 E.T.R. (4th) 14.
[53] In Leibel, the motion judge’s conclusion that the applicant in that case “had the knowledge to commence a will challenge on or before July 31, 2011” was based in part on her finding of fact that the applicant had received copies of the disputed wills a few weeks earlier: see Leibel, at paras. 34, 39. Likewise, in Birtzu, at para. 50, the trial judge concluded that the applicants had sufficient knowledge to commence their claim once, knowing that the deceased suffered from dementia, they learned that the disputed will “denied them any gift”.
[54] Importantly, in Birtzu, as in the case at bar, a lawyer acting for one of the plaintiffs wrote a letter setting a deadline by which the defendant “was to turn over the estate assets to [the plaintiff] or face legal action”: see Birtzu, at para. 46. In concluding that the plaintiffs’ claim was statute-barred, the trial judge treated the limitations clock as starting to run on the deadline date that had been set in the plaintiff’s counsel’s letter, not on the date that this letter was sent: Birtzu, at para. 48. I agree that this approach makes sense, since if the defendant had capitulated to the plaintiff’s demands, there would have been no need for litigation. . Bitaxis Estate v. Bitaxis
In Bitaxis Estate v. Bitaxis (Ont CA, 2023) the Court of Appeal dealt with a straightforward case that provides a useful demonstration of some of the process for objecting to a will:[1] The appellant appeals the judgment of the application judge, vacating his Notice of Objection, dated July 2, 2021, in response to the respondent’s application for a Certificate of Appointment of Estate Trustee with a Will with respect to the Last Will and Testament of Theoni Bitaxis dated April 18, 2019 and Codicil dated July 2, 2019 (hereinafter the “2019 Will”) and ordering that the respondent be appointed as the sole Estate Trustee.
[2] The appellant argues that the application judge erred in concluding that he failed to adduce, or point to, some evidence which, if accepted, would call into question the validity of the 2019 Will and, as a result, vacating his Notice of Objection. He argues that the application judge did not appreciate that his role was simply that of gatekeeper, tasked with deciding whether the appellant should be given tools, such as documentary discovery, to challenge the validity of the 2019 Will. The appellant says that the reasoning of the application judge in distinguishing Stone v. Firestone, an unreported endorsement of Dietrich J. dated June 14, 2022, shows that the application judge did not properly apply the minimum evidentiary threshold in this case. As he did before the application judge, the appellant argues that the evidence in this case is stronger than the evidence in Stone.
[3] We are not persuaded that there is any basis for this court to interfere with the judgment of the application judge.
[4] In Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 88, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 207, this court held that an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. To meet the evidentiary threshold, the person seeking to challenge a will must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded: Neuberger, at para. 89.
[5] The application judge considered and applied Neuberger. He clearly appreciated that the purpose of the minimal evidentiary threshold was to determine whether the appellant was entitled to documentary discovery. His decision is entitled to deference: Johnson v. Johnson, 2022 ONCA 682, at paras. 15 and 20, leave to appeal to S.C.C. requested, 40477.
[6] The application judge considered all the evidence adduced by the appellant. He also considered Stone. He held that the evidence in that case, if accepted, would have called into question the validity of the will. In contrast, he held that the appellant’s evidence “does not suggest that Theoni may have lacked testamentary capacity, or that she was potentially subject to undue influence, when the 2019 Will was executed.”
[7] The appellant points to no palpable and overriding error or error in principle. Contrary to his submissions, he asks this court to reweigh the evidence before the application judge and come to a different conclusion. . Di Nunzio v. Di Nunzio
In Di Nunzio v. Di Nunzio (Ont CA, 2022) the Court of Appeal cites a leading case on challenging a will:[5] In substance, the application judge correctly applied the applicable legal principles in Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, ...
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