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Digest of the Week | Testamentary Capacity

Krolewski v. Moniz| 2020 ONSC 53 | Ontario Superior Court of Justice


Estates — Will challenges — Testamentary capacity — Suspicious circumstances — Sufficiency of evidence


Deceased was diagnosed with cancer, and he executed new will just three weeks prior to his death — Deceased bequeathed stocks and RRSPs to applicants, adult children from first marriage, to be divided equally, and he bequeathed vehicle to son — Residue of was left to respondent, deceased's common-law spouse of 18 years — Main difference between new will and prior will was that children no longer received deceased's interest in home he shared with spouse — Children brought application challenging validity of will — Application dismissed — It was presumed that deceased knew and approved of contents of will and had requisite testamentary capacity to execute will, and to rebut presumption children needed to prove presence of suspicious circumstances — Evidence of lawyer supported finding that deceased was not suffering from physical or mental impairment sufficient to rebut presumption of testamentary capacity, and children's own expert capacity assessor could not conclude that deceased lacked testamentary capacity based on medical records that included information about medication he was using — While deceased was suffering physically, there was insufficient evidence that his pain level and medications would have caused him mental impairment sufficient to rebut presumption of testamentary capacity — There was not significant change in new will — Prior will would not have been fair to spouse since it would have left essentially entire estate to children — New will made testamentary sense, as deceased would want to divide estate between spouse and children — Factual circumstances surrounding drafting of new will were not suspicious — Deceased met with long time lawyer, he provided instructions to change will, lawyer was experienced, he was informed of deceased's medical condition and met with him alone, and lawyer asked deceased questions to determine if he had capacity to provide instructions — While it was concerning that deceased told lawyer he was changing will because his children no longer saw him when they were seeing him daily, that did not lead to conclusion that children established suspicious circumstances sufficient to rebut presumption of testamentary capacity — Spouse was not involved in drafting will — While spouse made appointment and drove deceased to lawyer, she was not present when deceased provided instructions — Children made bald allegation of undue influence, and they led no evidence to support allegation — Children failed to discharge onus of establishing that there were suspicious circumstances regarding will, and presumption that deceased had testamentary capacity when he executed will was not rebutted.
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