Testator experienced episode of confusion, possibly accompanied by paranoia, and lacked testamentary capacity

Testator died on November 15, 2014. In 2006 will, respondents and applicant were named executors. In 2007 will, respondents were named executors. Applicant did not learn of 2007 will until January 2015. Applicant sought declaration of invalidity of 2007 will, in part on ground of lack of testamentary capacity. Application granted; 2007 will set aside; 2006 will restored as true last will and testament. There were suspicious circumstances that collectively suggested testator lacked testamentary capacity when he executed 2007 will. Events were inconsistent with considered intention to disinherit applicant, there was reason to doubt that demand letter to applicant regarding debt represented testator's true state of mind in September 2015, and evidence did not establish that testator decided to exclude applicant from 2007 will for reasons related to loans in 2005. Content of 2007 will was inconsistent with testator's apparent wishes as expressed in his actions shortly after execution of 2007 will, and content of that will was also inconsistent with testator's continuing relationship with applicant. 2007 will was unusually spiteful. Onus of providing testamentary capacity regarding 2007 will thus rested with respondents, and they failed to satisfy that onus. Most probable scenario was that testator experienced episode of confusion, possibly accompanied by paranoia, when he executed 2007 will and therefore lacked testamentary capacity at that time.

Shannon v. Hrabovsky (2018), 2018 CarswellOnt 18448, 2018 ONSC 6593, H.J. Wilton-Siegel J. (Ont. S.C.J.).