Will not surrounded by suspicious circumstances: Ontario Court of Appeal

The deceased had testamentary capacity, regardless of her illness and the effects of her treatment and medication, and was not under any influence when she made her will, the Ontario Court of Appeal said in a recent case.

The testator made a Mar. 1, 2017 will naming the respondent sole trustee and beneficiary of her estate and expressly disinheriting her other children, the appellant and her brother. On July 20, 2018, the testator died from cancer at age 80.

The court issued to the respondent, as executrix, a certificate of appointment with the will attached. The appellant brought an application to set aside the 2017 will.

Justice Laurence Pattillo of the Ontario Superior Court of Justice dismissed the application and deemed the appellant’s evidence insufficient to support her allegations. He made the following findings:

• The appellant’s relationship with her family, particularly her mother, was tumultuous, difficult, and not close due to her history of alcohol and drug abuse
• In her 2015 will, the testator wanted to disinherit the appellant because she took and failed to replace money from her bank account while she was going through chemotherapy
• In her 2017 will, the testator carried out her “firm and clear” testamentary intention to exclude the appellant and her brother, given her rational concern that the appellant would run through the money and her belief that the respondent would know what to do and would look after her siblings

On appeal, the appellant alleged that the will was invalid and of no force and effect based on lack of capacity, suspicious circumstances, and undue influence. She argued that the application judge erred in finding no public policy considerations justifying payment of her costs from the estate.

Testator not under influence

In Di Nunzio v. Di Nunzio, 2022 ONCA 889, the Ontario Court of Appeal dismissed the appeal. First, the appellate court found no basis to intervene with the application judge’s findings, which the record amply supported.

According to the appellate court, the judge:

• correctly applied the applicable legal principles in Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876
• thoroughly considered the evidence relating to the appellant’s arguments
• gave compelling reasons for accepting evidence from the respondent and from independent witnesses, which provided that the testator had the requisite testamentary capacity and was only guided by her own alert good judgment when making her 2017 will, which was not surrounded by suspicious circumstances

Second, the Court of Appeal granted leave to appeal the costs order, allowed that appeal, and set aside the costs order. The parties’ agreement that the successful party would get $25,000 was inapplicable, given the divided success, the court said.

The appellate court held that the grounds that the appellant raised did not rise to the level of public policy considerations warranting payment of her costs from the estate. However, the court found that these grounds were not frivolous and did raise triable issues deserving of court scrutiny.

Thus, the Court of Appeal set aside the costs order against the appellant. She would bear her own costs of the application, while the respondent’s costs would be payable from the estate, the court said.