Toronto Estate Litigation Lawyer

Category: WILL CHALLENGES

When Sorry is Not Good Enough: Crucial Lessons from the Ontario Court of Appeal in Henderson v. Wang, 2025 ONCA 335
Estate litigation can be complex, and challenging a will is often an emotionally charged and demanding process. When a court decision doesn’t go your way, the option of an appeal offers a second chance, but only if conducted meticulously and within strict legal parameters. A recent decision from the Ontario Court of Appeal, Henderson v. Wang, 2025 ONCA 335, serves as a crucial reminder of the importance of following court procedures, communicating clearly, and having a meritorious appeal. Henderson underscores why parties seeking an appeal must adhere to every rule, or risk having their matter dismissed.

In Henderson, the applicant/appellant, Susan Henderson, challenged the validity of her late mother’s 2018 Will. Susan was not named as a beneficiary in the 2018 Will, whereas she was a beneficiary in an earlier 2009 Will. Susan alleged suspicious circumstances, a lack of testamentary capacity, and undue influence. Susan’s application challenging the 2018 Will was dismissed by the judge hearing the application. Susan then attempted to appeal the dismissal of her application. Her initial notice of appeal was filed but not served by the March 20, 2025, deadline. The notice of appeal was rejected by the court on March 27, 2025, because of “various deficiencies, including that no proof of service had been provided”. Susan now needed an extension of time to proceed with her appeal. Susan’s motion for an extension of time was heard by the Ontario Court of Appeal. Unfortunately for Susan, the Ontario Court of Appeal dismissed her appeal, resulting in her application being dismissed entirely.

The Ontario Court of Appeal applied a four-factor test when addressing Susan’s appeal:
1. Intention to appeal: Did the party demonstrate an intent to appeal within the initial timeframe?
2. Length of and explanation for delay: How long was the delay, and what caused it?
3. Prejudice to the responding party: Will the other side be negatively impacted by the delay?
4. Merits of the proposed appeal: Does the appeal have a reasonable chance of success?
The Ontario Court of Appeal held that the “justice of the case weighs against” granting the extension (and dismissing the appeal) for the following reasons:
1. Unconvincing Explanation for Delay: While the Court accepted that Susan had a timely intention to appeal, her explanation for the delay in serving and filing the notice was problematic. She claimed she was “mistakenly advised by the court office” to wait for a court file number before serving. However, the Court firmly stated that Rule 61.04(1) of the Rules of Civil Procedure plainly requires an appeal to be commenced by “serving a notice of appeal…within 30 days,” and Rule 61.04(4) requires filing with proof of service within 10 days after service. The Court emphasized that there is “no provision” for serving after a file number is assigned. Furthermore, her own evidence was inconsistent, as her timeline did not mention such advice, and she later characterized instructions as “unclear or incomplete” rather than incorrect.
2. Lack of Meritorious Appeal: Perhaps the most decisive factor, the Court found the proposed appeal had “so little merit” that it had “no chance of success”. Susan “pointed to no error of law” and primarily challenged the application judge’s “careful and thorough findings of fact and credibility”. The lower court had found no suspicious circumstances, that Ruth Henderson had the necessary testamentary capacity, and that she made her Will without undue influence. The appeal raised no “arguable error” with these conclusions.
3. Prejudice and Unreasonable Conduct: Despite the initial delay being relatively short, the Court highlighted Susan’s “actions in unreasonably delaying the filing…and then mischaracterizing and blaming the court office and the responding party and counsel”. The decision noted a “long history of procedural misconduct” and a “pattern of delay”. Critically, the Court stressed that “estate matters are expected to be administered promptly and efficiently”. Almost six years had passed since Ruth Henderson’s death, and the estate administration was incomplete. The estate trustee and beneficiaries were “entitled to finality” and “should not be required to expend further time and expense responding to a meritless appeal that only serves to deplete the estate”.
Important Lessons Learned for Estate Litigants from Henderson

This decision offers invaluable insights for anyone involved in estate litigation, particularly those considering an appeal:
1. Strict Adherence to Rules of Civil Procedure is Paramount: Do not assume or rely on informal advice over the clear, written rules. It is your responsibility to understand and strictly follow deadlines and requirements for serving and filing documents. Missing deadlines or failing to provide proof of service can be fatal to your appeal.
2. Provide Credible and Consistent Explanations for Delay: If you need an extension, your explanation for delay must be believable and consistent across all your evidence. Inconsistent narratives or blaming others without clear justification will undermine your credibility.
3. Your Appeal Must Have Substantive Merit: An appeal is not a chance to simply re-litigate facts. You must identify an “arguable error of law” or a palpable and overriding error of fact made by the lower court. If your appeal has “so little merit” that it has “no chance of success,” it will likely be dismissed, even at the extension stage.
4. Your Conduct Matters: A pattern of “unreasonable conduct,” delay, or procedural misconduct can significantly prejudice your case and negatively impact the court’s willingness to grant discretionary relief like extensions. Courts are focused on the integrity of the justice process.
5. Estate Matters Demand Promptness and Finality: Courts emphasize the need for estates to be administered “promptly and efficiently”. Protracted litigation, especially if caused by a party’s unreasonable actions, is viewed negatively as it depletes estate resources and denies beneficiaries finality.
Not only did Susan lose her appeal and have her application dismissed, but she was also ordered to pay the legal fees of the responding party. In addition, Susan incurred her own legal fees.

At Derfel Estates Law, we understand the complexities of estate litigation and appeals. Henderson serves as a powerful reminder that while the right to appeal is fundamental, it comes with stringent procedural and substantive requirements. Seeking experienced legal counsel from the outset is crucial to ensure compliance, build a strong case, and avoid pitfalls that can lead to the dismissal of your claims.
August 21, 2025
I Want My Daughter to Be Independent and Self-Sufficient – Can I Cut Her Out of My Will?
So you’re thinking about disinheriting your child. Contrary to what you and others might think, this does not make you a bad parent. Unlike in forced heirship regimes, children in Ontario have no legal right to inherit anything from their parents’ estates. You may disagree with their lifestyle, politics, finances, or simply desire to see them make their own way in the world without depending on you for support. Your testamentary freedom grants you the right to dispose of your estate however you choose. However, this right remains subject to various limitations from the courts and legislatures which might impact your ability to choose your beneficiaries. Here are several things you should keep in mind when considering whether to disinherit your child.

Dependant Support Provisions

A major limitation to testamentary freedom are dependant support provisions, which allow courts to interfere with your Will if you have not adequately provided for your dependants.

Under section 58(1) of Ontario’s Succession Law Reform Act (SLRA), if a deceased has not made adequate provisions for the proper support of their dependants, the court can order that adequate provisions be paid out of the estate. Section 57(1) of the SLRAdefines a “dependant” as:

(a) the spouse of the deceased,

(b) a parent of the deceased,

(c) a child of the deceased, or

(d) a brother or sister of the deceased,

to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

A “child” under the SLRAincludes a grandchild and “a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family.” This means that a “child” could include biological children, adopted children, and even stepchildren, in some circumstances.

As such, per the SLRA, you cannot effectively disinherit any minor children, children you were supporting, or children you were legally obligated to support. If you fail to adequately provide for them, then your estate could be subject to a dependant support claim. But what about adult children who are not financially dependent on you?

Adult Children

Whether you can disinherit your adult child is more complicated. It is also highly dependent on what jurisdiction you live in as different provinces have different rules.

While all provinces recognize support claims based on financial need, the Supreme Court of Canada also recognized the validity of moral claims which a child might have to their parents’ estate.[1] These principles were accepted to apply in Ontario in Cummings v Cummingsas factors to be considered when determining the amount and duration of support under section 62(1) of the SLRA.[2]However, there is no moral obligation in Ontario to include your child in your Will.[3]

In Ontario, the definition of “dependants” is limited by financial need and courts can only consider moral obligations when determining how much support to award. There is no statutory entitlement for adult children to seek dependant support against their parent’s estate in Ontario.[4] In contrast, in British Columbia, courts can interfere and order support that is “adequate, just and equitable in the circumstances” for the testator’s spouse and children of any age.[5] This leaves Wills in British Columbia significantly more vulnerable to challenges from disappointed children. For instance, in Pascuzzi v Pascuzzi, the court found that the testator had a moral obligation to provide for his 32-year old daughter and awarded her 30% of his $1.8 million estate.[6]

In practice, disinheriting your non-dependent adult child in Ontario has rarely, if ever, been interfered with by courts, as discussed in a previous blog. Courts have even upheld Wills which excluded children for discriminatory reasons. In Spence v BMO Trust Company[7], a father excluded his daughter from his Will after she had a child with a man of a different race. The Court found no discrimination on the Will itself and was unable to admit outside evidence of the testator’s discrimination. The court noted that:

Absent valid legislative provision to the contrary, the common law principle of testamentary freedom thus protects a testator’s right to unconditionally dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds.[8]

As adult children are not able to make a claim for support against their parent’s estate in Ontario, the next step for disinherited children would be to challenge the validity of the Will itself.

What Can I Do To Prevent My Will from Being Challenged?

Although applicants must meet a minimum evidentiary threshold to successfully launch a Will challenge, there are several things you can do to help prevent a Will challenge or decrease the likelihood of its success:
- Document your reasons for excluding your child. This will show that the exclusion of your child is a reflection of your testamentary intentions and not a result of external influences or incapacity.
- Ensure that your Will is properly executed and meets the formal requirements in Ontario. A Will must be in writing, signed by the testator (or someone else at the testator’s direction), and signed by two witnesses.
- Document your mental capacity when making your Will. There are several ways you can do this.
  - You should make a Will with an experienced and reputable estate lawyer. They will ask questions to gauge your mental capacity and whether you are making decisions free from influence. They can also take notes during consultations, which can be used as evidence of your capacity.
  - Get a capacity assessment. Ontario’s Capacity Assessment Office provides training and certification to capacity assessors, who can conduct a capacity assessment and show that you have the requisite testamentary capacity.
- Meet with your lawyer alone. If you come to the consultation with your child or another beneficiary under the Will, this could lead to challenges based on undue influence. When you are concerned that your Will may be contested, it is best to avoid even the appearance of impropriety.
- Update your Will. By updating your Will and continuing to exclude your child, you will show that the decision to not include them was not made on a whim and remains a true reflection of your testamentary intentions.
- Be honest with your child. While you may want to avoid an unpleasant and awkward conversation, it is best to be open about your plans to your children. Some children commence a Will challenge simply because they were surprised by their exclusion and did not understand their parent’s decision. This ensures that your child is not financially planning around an inheritance they will not receive and is not blind-sided by the news after your passing.
Derfel Estate Law in Toronto Represents Clients in Contentious Estate Litigation or Estate Planning Matters

These issues demonstrate the importance of consulting with a lawyer when preparing your Will. While it may be tempting to save costs by creating a Will without the assistance of a professional, it can result in serious consequences for your beneficiaries and estate.

The experienced estate lawyers at Derfel Estate Law in Toronto act on behalf of executors to defend various estate litigation matters, including Will challenges and capacity concerns. To learn how we can assist you with estate planning or your estate litigation dispute, call our office at 416-847-3850 or contact us online.

This blog was co-authored by Law Student, Leslie Haddock.

[1] Tataryn v Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 SCR 807.

[2] Cummings v Cummings, 2004 CanLII 9339 (ON CA), [2004] CarswellOnt 99 at paras 40and 46.

[3] For example, see Stewart v Stewart, 2021 ONSC 1222 at paras 125-127.

[4] For example, see Shafman v Shafman, 2023 ONSC 1391 at para 1.

[5] Wills, Estates and Succession Act, [SBC 2009] ch 13, s 60.

[6] Pascuzzi v Pascuzzi, 2022 BCSC 907, aff’d 2023 BCCA 131.

[7] Spence v BMO Trust Company, 2016 ONCA 196.

[8] Ibidat para 75.
June 28, 2023
What does the Clause “I hereby Revoke All Wills and Testamentary Dispositions of Every Nature and Kind Whatsoever Made by Me Heretofore Made” Actually Mean?

When you are doing Estate planning, most individuals want as little as possible to go through their Will. They want to minimize their Estate in order to save on Estate Administration Tax (probate tax).

Imagine – you are considering drafting a new valid Will. You have already done one previously and ensured that your investments have a designated beneficiary – which allows these funds to go to the beneficiary outside the Will, and avoid tax.

You have existing RRIF and TFSA accounts and have made all necessary provisions to ensure your beneficiaries will receive these funds upon your death.

You’ve decided to make a new Will. In drafting the new Will, you consider that you have already designated funds to two of your children (with your RRIF and TFSA). As such, you decide that you will leave money in your Will, but only to your other two children.

As with most Wills, the Will contains the clause: “I HEREBY REVOKE all Wills and Testamentary dispositions of every nature and kind whatsoever made by me heretofore made”.

Does this clause act to remove the designations you did previously (as you intended) or does making a new Will revoke the designations and therefore result in two of your children not inheriting at all?

As with most situations, the Testator/Testatrix is not available to give their intentions and it is left to the court to decide.

Recently, in Alger v. Crumb [1], the court addressed the issue of whether this general revocation clause makes a Will not effective under s. 52(1) of the SLRA (Succession Law Reform Act) to revoke those designations. In analyzing this decision, the court reviewed these sections of the SLRA.

Sections 51 and 52 of the SLRA governs designations and revocations under a Will on the death of the Testator/Testatrix. Section 53 deals with the payment of the benefit under the plan to the designated beneficiary and enforcement.

Section 51 of the SLRA sets out the approach to designations in Ontario. Under s. 51(1), a person is able to designate a beneficiary of a benefit payable under a plan on the person’s death through two mechanisms: (a) a signed instrument, or (b) by Will.

Where a party elects to designate a beneficiary by Will, the designation is only effective “if it relates expressly to a plan, either generally or specifically”[2]. A later designation will revoke an earlier designation where there is inconsistency.[3]

In Alger[4], the court set out a test to determine the meaning behind this standard clause. The Court determined that, the first question in interpreting the clause is whether the term “testamentary dispositions” includes the designations of beneficiaries by instrument of the RRIF and TFSA plans. In MacInnes v. MacInnes,[5] the Supreme Court held that the designation of a beneficiary under an employee benefit plan to receive the proceeds of the plan on death is a testamentary disposition, the test being whether the intent of the maker was that the gift be dependent on the maker’s death. That case has been interpreted and relied on subsequently to apply to an RRSP beneficiary designation[6].

In the case of Alger[7], the judge concluded that this first question is answered in the affirmative, the RRIF and TFSA plans are testamentary dispositions and therefore are included within the meaning of that term as used in the general revocation clause of the will.

The remaining question is whether the revocation of “all…Testamentary dispositions of every nature and kind whatsoever” relates “expressly to the designation, either generally or specifically.” This statutory requirement has two components for the revocation to be effective: 1) it must relate to the designation, as opposed to the plan; and 2) it must relate to the designation “expressly…, either generally or specifically”.

In Alger[8], the judge concluded that this clause, which is provided in a lot of Wills, does not relate to designations “expressly”. In other words, if a general revocation clause commonly used within a Will does not relate expressly to the beneficiary designations made by the testator/testatrix, for example for her RRIF and TFSA plans, it does not comply with s. 52(1) of the SLRA, and it is therefore not effective to revoke the designations of beneficiaries of the RRIF and TFSA plans.

This decision assists people when drafting Wills and understanding that interpretation is sometimes left to a judge. Rest assured, named designated beneficiaries remain unless a new Will “expressly” excludes them.

Contact the Estate Litigation Lawyers at Derfel Estate Law in Toronto for Guidance on Wills

At Derfel Estate Law, our estate litigation lawyers have substantial experience helping clients manage probate and estate administration in Ontario. Often, executors do not have a complete picture of a testator’s debts until after their passing. Dealing with an estate that has significant debts can be confusing and frustrating. If you are an executor of an insolvent estate, contact our lawyers at 416-847-3850 or reach out to us online to find out how we can help

Blog by articling student Kathleen Judd, BSc. (Hons), JD

[1] Alger v. Crumb, 2023 ONCA 209 (CanLII)

[2] Succession Law Reform Act, at s. 51(2)

[3] Ibid, at s. 52(2).

[4] Supra, note 1

[5] MacInnes v. MacInnes, 1934 CanLII 16 (SCC), [1935] SCR 200, at para. 14

[6] see Amherst Crane Rentals Ltd. v. Perring (2001), 241 D.L.R. (4th) 176 (Ont. C.A.), 2004 CanLII 18104, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 430

[7] Supra, note 1

[8] Ibid

May 29, 2023
Validity of Will Upheld Despite Allegations of Capacity Issues

Estate litigation can involve highly contentious proceedings, particularly among family members. When a person, particularly a child, feels as though they have not been adequately provided for or have been left out of the Will, feelings can get hurt, and proceedings can become emotionally driven. That individual may then commence proceedings against the estate to challenge the validity of the Will in question or to raise issues regarding the testator’s capacity. However, these challenges are not taken lightly by the courts.

This issue arose in a recent case before the Ontario Court of Appeal, where the deceased had disinherited two of her children, leaving one child as the sole beneficiary and estate executor. The testator’s daughter commenced an application seeking a declaration that the Will was invalid, which was initially dismissed by the Supreme Court of Ontario. The decision was appealed to the Ontario Court of Appeal.

Mother dies of cancer, disinherits two of her three children

In Di Nunzio v. Di Nunzio, the testator passed away at age 80 on July 20, 2018. She prepared a Will dated March 1, 2017, which appointed one of her daughters as sole beneficiary and executor of her estate. The testator expressly disinherited her other daughter (the appellant in this case) and son.

The Court issued a certificate of appointment on October 23, 2018 to the executor. The appellant commenced an application on October 29, 2018, claiming that the testator’s Will was invalid based on suspicious circumstances, lack of capacity, and undue influence.

Lawyer who drafted Will did not believe capacity was an issue

In the years leading up to her passing and throughout her illness, the executor and the testator’s son were actively involved in their mother’s care, with the executor acting as the testator’s primary caregiver. The testator named the executor her power of attorney for personal care and property.

In January 2017, the testator was referred to the lawyer who prepared her Will. The lawyer was not concerned about capacity when he met with and obtained instructions from the testator. The lawyer claimed that the testator was clear about how she wanted her estate distributed and believed that the executor would take care of the testator’s son with her share of the estate. Her choice to not include her other daughter (the appellant) was based on that daughter’s previous issues with drugs and money.

Despite not being well enough to travel on the date scheduled to execute the Will at the lawyer’s office, alternative arrangements were made, and the testator appeared alert and her usual self.

Testator and disinherited daughter had rocky relationship

The testator had three prior Wills. A Will created in 2014 appointed both daughters as estate trustees, with a Henson Trust set up for the son. A subsequent Will in 2015 appointed the executor as sole executor, with the estate distributed equally among her three children. When the testator advised the lawyer that drafted the 2014 Will that she wished to remove one of her daughters as executor and beneficiary in her revised Will, he required her to submit to a capacity assessment. This decision was based on the daughter taking a large sum of money from the testator’s bank account without permission. Ultimately, the daughter (appellant in the current case) was removed as executor and power of attorney but remained a beneficiary.

Evidence in both the son and executor’s affidavits stated that the appellant and her mother had a rocky relationship for many years due to her history of drug and alcohol abuse and issues with money. While the appellant did not deny these statements, she claimed that the relationship was amicable during the time period in question.

Application judge held presumption of testator’s capacity not rebutted

The disinherited daughter applied for an order from the Supreme Court of Ontario revoking the Certificate of Appointment and requiring that the Will be proved and declared invalid and of no force. She put forward three affidavits of her own, affidavits of two friends, and three expert reports of a handwriting examiner in support of her claim.

The other daughter (the executor) provided an affidavit of her own and of the son, along with affidavits from the lawyer who drafted the testator’s Will and the two witnesses to the Will’s execution.

The Court began by referring to the decision of Vout v. Hay, which held that if a Will is executed and complies with the formal requirements and the testator knew its contents, a rebuttable presumption arises that the testator had the necessary capacity. The Court found that, based on the evidence, the disinherited daughter could not rebut the presumption and could not establish suspicious circumstances. She appealed this decision.

Court of Appeal upholds application judge’s findings

The Court of Appeal dismissed the application and upheld the application judge’s initial findings. The Court found that the application judge applied the principles from Vout v. Hay appropriately and gave sufficient consideration to the evidence in reaching their decision.

The Court found the application judge provided adequate reasons for accepting the evidence submitted by the executor, establishing that the testator had sufficient capacity when she prepared her Will (aside from her illness and the effects of her medication and treatment). The Court further affirmed the application judge’s finding that the appellant and her mother had a relationship that “had been tumultuous and difficult for a very long time”. As a result, the appellant’s evidence could not support her claims of incapacity and undue influence.

Argument for public policy considerations rejected

The appellant also claimed that the application judge erred in not finding a public policy consideration to justify payment of her costs from the estate. As per the case of MacDonald Estate v. Gooderman, if there are ambiguities in a Will that give rise to litigation, it is appropriate for the testator (through their estate) to bear those costs.

The Court of Appeal stated that because the Will was valid and no issues were found related to the testator’s capacity, the public policy considerations set out in MacDonald Estate were not applicable in these circumstances. Therefore, the appellant was responsible for her own costs.

Derfel Estate Law in Toronto Represents Clients in Contentious Estate Litigation Matters

The experienced estate litigation lawyers at Derfel Estate Law in Toronto act on behalf of executors to defend various estate litigation matters, including Will challenges and capacity issues. Managing estate administration can be a tedious and confusing responsibility, particularly when disputes arise among family members, which is why we are here to help. To learn how we can assist you with your estate litigation dispute, call our office at 416-847-3850 or contact us online.

January 18, 2023
Is There a Duty to Advise a Beneficiary if a Testator Removes Them as One?

In some instances, estate litigation can involve challenges to the will by individuals who believe they should have been a beneficiary of the estate in specific capacities.

In the recent decision of Fair v. BMO Nesbitt Burns Inc.,the Court of Appeal of Ontario was asked to determine whether a beneficiary to an investment account was entitled to be notified if their status as a beneficiary was changed. Specifically, the appellant in this case was the wife of the testator, who learned after his unexpected death that she had been removed as a beneficiary of investment accounts he held. She claimed that the respondent financial institution, who helped her husband update his accounts, was obliged to tell her of his decision to remove her.

Wife learns that husband removed her from will

The testator passed away on November 23, 2016. At the time of his death, he held three investment accounts with the respondent. The testator and the appellant had been married for ten years at the time of his death, but the testator had three children from a previous marriage.

Following her husband’s death, the appellant became aware that the testator had removed her as the beneficiary of his investment accounts and instead left them to his three children. She told the respondent that this was a breach of an agreement between herself and the testator and sued the respondent, alleging that it violated a duty to advise her of the change to her beneficiary status. Additionally, the appellant brought an action against the testator’s children, alleging a constructive trust in place and that the doctrine of unjust enrichment should apply.

Motion judge says no duty to advise exists in law

The motion judge dismissed the appellant’s action against the respondent, finding that her argument was premised on a duty to disclose the change but found that no such duty exists in law. The motion judge found that the investment accounts were held in the testator’s name alone, therefore the appellant herself was not a customer of the respondent.

The motion judge further stated that the respondent had a duty of confidence with the testator as a result of their bank-customer relationship:

“There is also no obligation either in [statute] or common law to notify third parties about an individual’s beneficiary choices. I agree with (the respondent), that to impose such an obligation would be an absolute breach of that individual’s privacy and their right to dispose of assets as they choose.”

The motion judge held that there was no genuine issue requiring a trial and dismissed the claim against the respondent.

Was the bank an investment advisor?

In her application for appeal, the appellant argued that the motion judge erred in finding no genuine issue requiring a trial. She claimed that the respondent was not a bank, but instead an investment advisor in this situation, and as such, the motion judge’s comment regarding bank-customer confidence was misplaced. The appellant told the court that she and the testator each held individual investment accounts with the respondent and that the statements of the accounts were regularly shared with both her and the testator regularly.

The appellant referenced the 2005 decision of Davidson v. Noram Capital Management Inc., in which the Ontario Superior Court of Justice stated that an investment advisor “has a duty to ensure that the client is fully informed as to all material matters relevant to his/her investment portfolio.”

Court of Appeal Upholds Motion Judge’s Findings

The Court of Appeal agreed that the motion judge may have misstated the respondent’s role in the testator’s life, but found the mistake to be of no consequence. The Court wrote that the respondent may have shared information about the appellant’s accounts with her husband and vice versa, but this was because each of them had consented to that information being shared. When the testator updated the beneficiaries on his investment accounts, he did not include permission to share that information with the appellant.

The Court added that the appellant’s reliance on the decision in Davidson v. Noram Capital Management Inc. was misplaced, as in that case, the Court was referring to changes to an account when the person who was not notified was an owner of that account. Since the appellant in this matter did not own the accounts in question, the decision did not support her position.

The Court ultimately found that the only evidence that the appellant had was her assertion that her and the testator had an agreement to leave their investment accounts to the other should one of them pass away. The appellant had no documentation of this agreement, and in looking at the testator’s actions, the motion judge was within their boundaries to rule that those actions outweighed the appellant’s claims.Court dismissed the appellant’s claim and ordered her to pay $17,500 in damages to the appellant and her late husband’s estate.

Derfel Estate Law Provides Provides Advice to Estate Trustees Facing Will Challenges

At Derfel Estate Law, our estate litigation lawyers acknowledge that many clients are dealing with estate administration and litigation for the first time. We understand that this can be an intimidating, expensive and emotional experience. Our team prides itself on simplifying the law and guiding clients through the litigation process by providing skilled advocacy for various estate and trust disputes, including matters relating to will challenges by beneficiaries and third-parties. Located in Toronto, our firm proudly serves clients in the Greater Toronto Area and throughout Ontario. Contact us online or by phone at 416-847-3580 to schedule a confidential consultation with a member of our team.

November 10, 2022
Son Challenges Validity of Father’s Will

In a previous post, we blogged about the requirements for a valid will. One of those elements is testamentary capacity, meaning that the will-maker must have the necessary mental capacity to understand the nature of their property and provide instructions regarding preparation of the will.

Lack of testamentary capacity is a common basis which individuals will apply to challenge a will on. In a recent case before the Ontario Superior Court of Justice, a son challenged his father’s testamentary capacity with respect to his will. The son claimed that the father lacked legal capacity to sign the will, however, the testator’s common law wife claimed that the testator signed the will at the hospital in the presence of two witnesses. Upon review of contradictory evidence, the Court concluded that the will was invalid.

Testator has stroke on holiday

In the matter of Riddle v. Nielsen, the applicant, Mr. Riddle, sought a declaration from the Court that the last will and testament of his father, dated May 17, 2019, was invalid due to his father’s lack of capacity on the date of execution. The testator had three other children in addition to the applicant, namely “SM”, “JR”, and “LR”. SM filed an application in support of Mr. Riddle’s application.

The testator suffered a stroke, heart attack and seizure in March 2019 while he and his common-law partner and the respondent, Ms. Nielsen, were in Myrtle Beach for a holiday. The testator underwent two surgeries at a hospital in Myrtle Beach where he remained for three weeks until his condition had stabilized and he could return to Canada. The testator was transferred to a hospital in Kingston on April 1, 2019, where he remained until he passed away on June 12, 2019.

Testator provided instructions to lawyer before trip

A lawyer who the testator instructed to prepare his will stated that he received instructions two weeks before the testator left for Myrtle beach, however, no plans were made for the execution.

While the testator was in the hospital in Kingston, Ms. Nielsen picked up the will which the lawyer had drafted. The lawyer provided Ms. Nielsen with instructions regarding execution of the will and she took it to the hospital.

Ms. Nielsen stated that the testator signed the will on May 17, 2019. The testator’s signature and initials were on each page, and two witnesses were also present.

Testator’s Common Law Partner Claimed Testator Sat Up During Will Signing

Based on the requirements under the Succession Law Reform Act, the Court stated that the onus was on Ms. Nielsen to prove that the testator did in fact sign the will in the presence of two witnesses. She told the Court that she arrived at the hospital on the morning of May 17, 2019, at about 10:40 am and stayed until 11:45am, during which time the testator was sitting up in bed, but was propped up by pillows while he signed the will.

The hospital records, however, contradicted the evidence provided by Ms. Nielsen and the two witnesses, as they showed that from 10:30am to 11:25am that morning, the testator was lying on his left side before a nurse turned him onto his right side where he stayed until 1:00pm.

Hospital Records Show Testator was Paralyzed

The medical records also stated the testator suffered from “left-sided hemiparesis and aphasia,” which meant that the left side of his body was completely paralyzed. Therefore, he could not have signed any documents while laying on his right side.

A physician who provided care to the testator opined to the Court that the testator did not have the cognitive or physical capacity to sign the will. In the morning of May 17, 2019, a CAM test was performed for the testator which required him to squeeze a certain hand to answer “yes” and “no” questions. The records showed that the testator was unable to squeeze fingers appropriately, and was also unable to perform tasks such as picking up a knife or fork or brushing his teeth.

Court Rejects Respondent’s Evidence

Upon review of the evidence, the Court was satisfied that the medical evidence provided by the hospital and treating physician greatly outweighed the evidence provided by Ms. Nielsen and the witnesses. Further, the Court was unable to confirm that the signature on the will was that of the testator and therefore declared the May 17, 2019, will invalid.

Derfel Estate Law can help you with challenges to the validity of a will

At Derfel Estate Law, our experienced team of estate lawyers provide skilled advocacy for clients involved in a variety of estate and trust disputes, including Will challenges and disputes related to executors or trustees. We understand that estate litigation can be lengthy, emotional and costly and aim to ensure that clients remain informed throughout the process. We proudly serve clients throughout the Greater Toronto Area and across Ontario. To schedule a confidential consultation regarding your estate litigation concerns, contact us online or by phone at 416-847-3580.

November 4, 2022
Unhappy Ex-Employee Tries to Deny Witnessing Execution of Boss’s Will

In Ontario, for a Will to be considered valid, it must be created by a testator who is of sound mind and over the age of 18. The testator must also sign the Will in the presence of two witnesses, who then sign confirming they witnessed the testator’s signature. But what happens when a witness later tries to deny having witnessed the Will’s execution?

In the case of Re Estate of Darlene Edwards, estate litigation arose when a witness recanted earlier statements that she had witnessed the testator’s signature. The witness was an unhappy ex-employee of the testator who was displeased with pay received in lieu of notice after the testator’s death.

Testator’s clerk witnessed Will

The testator was an insurance agent and was working in that profession when she found out she had terminal cancer. Following her diagnosis, she reached out to her daughter to help her arrange what she anticipated to be her last Will and testament on March 26, 2020.

The person hired to draft the Will emailed it to the testator, who then emailed it to her clerk to have it printed so it could be signed and witnessed. The testator had two people, including her clerk, witness its execution. As the Will was executed in the early days of the COVID-19 pandemic, the parties decided to meet on the back deck of the insurance agency where the testator and her clerk worked.

Affidavit of execution required from clerk to validate Will

The testator passed away on November 12, 2020, about eight months after the Will was executed. The Will named the testator’s daughter and son as joint executors. After the son renounced his executorship, the daughter was left to handle the estate alone. She reached out to her lawyer, who advised her that each of the witnesses to the Will would have to provide an affidavit of execution. The daughter spoke to the testator’s clerk and stated that the clerk agreed to provide an affidavit.

Insurance agency shuttered after testator’s death, clerk received pay in lieu of notice

The testator’s insurance agency shut its doors the month after she died. Her daughter managed this process and gave the testator’s clerk 14 weeks of pay in lieu of notice.

The notice provided to the clerk was more than she was entitled to under the Employment Standards Act. While the Ontario Superior Court noted that while the clerk may have been granted more notice under common law, one of the factors that can reduce this entitlement is whether or not the person has secured new employment. In this case, the clerk found work with a new insurance agent and brought along most of the testator’s clients.

Clerk recanted having seen the execution of the Will

Following her conversation with the testator’s daughter, the clerk advised her that she was unwilling to sign an affidavit of execution until she resolved the question of her right to severance pay. By this time, the clerk had begun to think she was entitled to more than the pay in lieu of notice provided by the testator’s daughter.

The clerk testified before the Court about the execution of the testator’s Will. She told the court that on the date the Will was executed, the testator arrived at the office with three documents, which she signed and handed to the clerk and the other witness. However, the clerk testified that she did not actually see the testator sign the Will and that she couldn’t say whether the testator signed the documents at that time or whether they were signed beforehand. She said she signed as a witness because the testator was her boss and asked her to do so.

In response, the testator’s daughter told the Court that the testator and witnesses were all standing close together on the insurance agency’s deck at the time of the signing. She argued that there was no ambiguity over whether her mother signed the Will in front of the witnesses.

Clerk’s evidence lacked credibility, was based on unhappiness with termination pay

The Court found that the testimony of the testator’s daughter was “plausible and coherent”. By comparison, the Court found the clerk had changed her version of events as she was unhappy with the amount of pay received in lieu of notice when the testator’s daughter closed her mother’s business. In fact, the clerk had admitted as much in a letter to the daughter in which she advised she would not sign the affidavit of execution.

Additionally, the Court found that the clerk’s signature on the Will contained the usual statement that it had been signed in the presence of the testator and the other witness. The Court found that the clerk would not have signed the document blindly and, in signing, had attested to having done so in the presence of the testator.

Contact Derfel Estate Law in Toronto for Effective Representation in Estate Disputes

At Derfel Estate Law, our talented estate litigation lawyers work tirelessly to achieve the best possible resolution for clients in a variety of disputes, including Will challenges, passing of accounts, and trustee and executor disputes. We help beneficiaries, executors, trustees, guardians, and other parties navigate the technical and complex landscape of these highly-emotional cases. We also provide comprehensive assistance with probate and estate administration. To schedule a confidential consultation, contact us at 416-847-3580 or reach out online.

October 24, 2022
Child Excluded From Will Requires Sufficient Evidence to Successfully Challenge Testator’s Capacity

While a testator may do everything they can while they are alive in an effort to set up their estate for easy distribution, they cannot prevent someone from challenging their will after they pass. Sometimes individuals who believe that they should have been included in the will as a beneficiary choose to contest a will when they discover that they have been excluded.

A recent decision from the Court of Appeal for Ontario provides guidance on why someone might choose to challenge a will and highlights the limitations they might face when trying to obtain evidence in support of their position.

One of Three Siblings Excluded From Will

The case of Johnson v. Johnson came about when three siblings found themselves in a dispute over their late mother’s will. The testator had three children, namely Janice, Hugh, and Nancy. She executed her will on August 12, 2015 and passed on August 23, 2020, leaving an estate with a value of approximately $457,000. Upon reading the will, Nancy discovered that she had been excluded from the will, while her siblings received equal portions of the estate.

Nancy commenced an application under Ontario’s Rules of Civil Procedure stating that there was evidence to suggest that her mom lacked the necessary capacity to execute the 2015 will and claimed it was invalid. Nancy stated that she was included in her mother’s 2007 will and that her exclusion from the 2015 will was an inexplicable marked change. Nancy sought an interim order from the court in order to prevent the estate from being distributed pending the outcome of the matter. She also sought the production of medical, financial, and legal documents which related to her mother in order to support her position.

During the initial hearing, the application judge referred to the framework established in a 2016 Court of Appeal of Ontario decision of Neuberger v. York (“Neuberger”) in concluding that Nancy had not met the minimal evidentiary threshold needed to provide the documentation she requested.

The Neuberger Approach

Neuberger confirmed that a court “has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved.” The decision also set out that “some minimal evidentiary threshold” must be met before a court will permit a will challenge.

To meet the minimal threshold, an applicant must point to some evidence they already have, which if accepted, would call into question the validity of the will. Should the applicant fail to do so, or if the responding party successfully answers that challenge, the motion should be dismissed. Only if the applicant provides that evidence and it is not successfully responded to shall the court open the doors to challenging the will.

Has the Evidentiary Burden Been Met?

Nancy claimed that the application judge accepted her siblings’ evidence as a successful answer to her concerns. However, the Court of Appeal was critical of this approach, stating that:

“At its core, Nancy’s submission amounts to an invitation for this court to reweigh the evidence and make different findings without pointing to any reversible error that would warrant appellate intervention. That is not our task.”

The Court found that the application judge carefully reviewed the evidence of both parties and was simply not persuaded by Nancy’s evidence that being excluded from the 2015 will was enough to prove a lack of capacity.

Court of Appeal Finds Testator was “Very Sharp”

The Court of Appeal was satisfied with the application judge’s finding that the evidence provided by Nancy’s siblings justified the change in wills. The siblings highlighted a conflict which had occurred between Nancy and her mother in 2014 when Nancy was acting as her mother’s attorney for property and personal care. During that time, Nancy had appointed herself as a joint beneficiary of her mother’s investments, and when her mother found out, she demanded an accounting of her financial assets which Nancy did not provide. The siblings also told the Court that Nancy and her mother argued significantly in 2014, which contributed to the subsequent will revisions in 2015.

The Court found that Nancy had failed to provide any evidence that her mother lacked capacity, and reiterated that the mere fact that she was excluded as a beneficiary in the 2015 will was not sufficient to support her position. The evidence which was provided to the Court by the siblings seemed to suggest that the testator was aware of what she was doing with her will in 2015 and that she was “very sharp.”

Ultimately, the Court of Appeal found that the application judge’s analysis of the Neuberger approach was satisfactory and Nancy’s appeal was dismissed.

Derfel Estate Law in Toronto Assists Clients in Matters Regarding Will Challenges

At Derfel Estate Law, our lawyers understand how difficult it can be to handle the affairs of a loved one’s estate after they have passed, particularly when family members are at odds. Our experienced team of estate lawyers remain up to date on estate administration requirements and have extensive experience assisting clients with issues that arise when a will is challenged. Contact us by phone at 416-847-3580 or reach us online to schedule a consultation.

October 17, 2022
Challenging a Will Without Adequate Evidence

Family disputes are common when it comes time to administer a Will. Sometimes, the deceased will have made promises to family members that are only found to be false when their Will is revealed after death. Nevertheless, mere disappointment is not enough to challenge a Last Will and Testament. Evidence must back up any allegation made. A recent case before the Ontario Superior Court of Justice concerns a great-nephew who unsuccessfully attempted to challenge his great-aunt’s Will.

The deceased frequently changed terms of her Will

The deceased passed away at the age of 90 in January 2020. She did not have any children and was pre-deceased by her husband. However, she and her late husband had large extended families. Together she and her husband had 22 nieces and nephews and 13 great-nieces and great-nephews. She named many of them in her Will.

The deceased’s estate was worth roughly .55 million upon her death. Throughout the years, she had drawn up seven Wills. Over time, she changed the executor in the Wills from her husband to two nephews on her side of the family. In her Will from 2018, the deceased gave the great-nephew at issue in this case, George, half of the house minus “,000 and the right of first refusal to buy it at fair market-value.” In a Will from 2019, the deceased gave the great-nephew a quarter of the house, minus ,000.

The deceased’s great-nephew sought to challenge her Will

The applicant was the estate trustee (another family member). The deceased’s great-nephew brought a Notice of Objection concerning his great-aunt’s Will. His objection consisted of allegations of a “lack of testamentary capacity, undue influence and suspicious circumstances.”

The estate trustee asked the Court for an order vacating the great-nephew’s Notice of Objection. The trustee also requested the Court issue a Certificate of Appointment of Estate Trustee with a Will.

The great-nephew had to prove that he was eligible to challenge the Will

The Court first considered the great-nephew’s Notice of Objection. The question was whether he had met the threshold needed, at minimum, to challenge the validity of the 2019 Will (which the estate trustee wanted to take precedence). The importance of this legal threshold was explained by the Ontario Cout of Appeal in Neuberger v. York:

“In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of smaller estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.”

The Neuberger case also described how an individual can meet the evidentiary threshold. The person challenging the Will must produce evidence that, if accepted, would call into question the validity of the Will.

The great-nephew had reasons to believe the Will was invalid

The great-nephew filed an affidavit in which he claimed that throughout 2018, the deceased allegedly told him that half of her house would be left to him. In the last year of her life, when the impugned Will was executed, the great-nephew claimed the deceased told him about her medication making her feel unwell or fatigued and that it caused her to experience some confusion. He stated that she was frequently admitted to the hospital in the year leading up to her death. She could not hear as well as she used to and had been prescribed more medication by her psychiatrist. The great-nephew pointed to the deceased’s recorded medication history from 2016 to 2019, which showed a marked increase in dosage between the making of the 2018 Will and the 2019 Will.

Finally, the great-nephew commented on the deceased’s behaviour. As an example, he referred to an incident in which the deceased refused to see him on his birthday after he had simply failed to give a bottle of olive oil to her relative. He also noted that a family friend seemed to be spending a lot of time at the house during that time.

Other relatives supported the great-nephew’s concerns

One of the deceased’s relatives submitted an affidavit confirming that the deceased had been unwell during the last year of her life. The relative stated that the deceased frequently complained about her medication and may have been experiencing hallucinations. The relative also noted the increased time spent between the deceased and the family friend.

Another relative confirmed by way of affidavit that the great-nephew was to receive 50% of the deceased’s home, according to the deceased’s statements in 2018. This relative stated that she had initially assisted the deceased by taking her to church after her husband’s death, but she was eventually replaced in this task by the family friend.

Evidence did not demonstrate that deceased lacked testamentary capacity

After assessing the great-nephew’s submissions, the Court noted that all of his evidence did not lead to the conclusion that the deceased had lost her testamentary capacity by the time she had executed the 2019 Will. It was accepted that the deceased likely did tell the great-nephew and others that he would receive half of the home in 2018. However, this did not mean that her intentions in executing the 2019 Will should be questioned. Even the hallucinations described to a relative were posed more as “vivid dreams” than hallucinations affecting testamentary capacity.

The Court further held that the family friend’s involvement in the deceased’s life does not prove that the friend had undue influence over the deceased. Likewise, the increased medication dosages did not automatically mean the deceased lacked testamentary capacity. In fact, she had also been prescribed medication ahead of the drafting of the 2018 Will. The great-nephew did not tender evidence that such an increase in 2019 would have affected her capacity.

For all of these reasons, the great-nephew’s Notice of Objection was vacated by the Court. The Court directed the Registrar to issue a Certificate of Appointment of Estate Trustee to the executor under the 2019 Will.

Derfel Estate Law Helps Position Clients for Success in Will Challenges

At Derfel Estate Law, we understand how difficult it can be to handle the affairs of a loved one’s estate after they have passed. Our experienced team of estate lawyers is always up to date on estate administration requirements and has extensive experience with Will challenges. We are committed to providing our clients with personalized attention and work closely with you through the duration of your case to keep you informed every step of the way. Contact us by phone at 416-847-3580 or reach us online to schedule a confidential consultation.

August 9, 2022
Family Conflict results in Long-Term Estate Litigation over Secret Trust and Mutual Wills Agreement

Family life can be complicated, especially when it comes to entitlement to finances. In some cases, conflict looms so large that it causes significant hardship when someone dies and their estate is administered. In a case before the Ontario Court of Appeal earlier this year, a family’s conflict led to lengthy litigation regarding the establishment of a mutual Wills agreement and secret trust.

Parents had mirrored Wills

The Gefens, Elias and Henia, were Holocaust survivors who had been married for 65 years. They immigrated to Canada in 1951 and had three sons: Harvey, Harry, and Yehuda.

Elias and Henria had mirror Wills. A mirrored Will is a Will that is entered into at the same time as another, with the exact same terms as that other Will. This is typically used in spouses or common-law partners who name the other beneficiary. So, upon Elias’s death in 2011, his estate passed to Henria, who was the sole executor.

Family conflict resulted in a secret agreement

Two months before Elias’s death, he and Harvey signed a document indicating a mutual Wills agreement between Elias and Henia. A mutual Wills agreement is a contract between two testators that prevents one from changing a Will without the other’s consent.

Elias had been suspicious about how Harvey was managing his real estate assets. He instructed a lawyer to investigate his business interests and to take the necessary steps to protect his estate. To this end, Elias eventually granted power of attorney over his property to a third party, much to the chagrin of Henia and Harvey. This led to the mutual Wills agreement, which was handwritten by Harvey and made without the help of legal counsel. The agreement requested the immediate revocation of the power of attorney and the restoration of power of attorney to Henia. Finally, the agreement stated:

“I further confirm that my latest will as prepared by Noah has not knowingly been changed by myself to date nor will it be changed during my life. My wife Henia has told me that she also will not change the will either & that our intentions that the estate be divided equally between our 3 sons after our death stands.

In my condition I am tired & confused & do not understand everything & I want only Noah to be my lawyer so this will not happen again, any legal documents notwithstanding.”

Mother made several large gifts to one son

In the last year of his life, Elias became upset at Harry and Yehuda, whom he believed cared too much about family finances. The family conflict was distressing to Elias, according to the physician who took care of him at the time of his death. Eventually, family visits to the hospital where he was being cared for were restricted for this reason.

From 2011 to 2013, Henia gave her son Harvey several inter vivos gifts. She did not believe her other sons, Harry and Yehuda, should receive anything from her or Elias’s estate. In fact, she sued Harry and Yehuda in 2013, which led to lengthy litigation. Yehuda died in 2016 and left no issue. He was represented by his surviving partner and estate trustee, Lucia.

Trial judge declined to recognize mutual Wills agreement or secret trust

The trial of this case did not take place until 2018 and 2019. Over the six-week trial, Henia, Harvey, and Harvey’s daughter Ashley were the subject of claims by Harry and Yehuda’s Estate. Henia had a claim with regard to the ownership of a condominium against Yehuda’s Estate.

The trial judge concluded that Harry and Yehuda’s Estate did not establish a mutual Wills agreement or secret trust. She also did not void some of the inter vivos gifts Henia had given to Harvey.

The evidence weighed against the existence of a mutual Wills agreement

The Ontario Court of Appeal began its analysis by looking at the mutual Wills agreement. The trial judge held that Harry did not meet the evidentiary burden to prove the agreement’s existence.

On appeal, Harry submitted that the trial judge weighed his evidence on a level beyond a balance of probabilities, which is the reason why she concluded there was no mutual Wills agreement. However, this argument was rejected by the Court of Appeal. The trial judge required that the mutual Wills agreement “be proven by clear, cogent, and compelling evidence in part because a mutual Will agreement interferes with the testamentary freedom of a testator[.]” There was simply overwhelming evidence against the existence of the mutual Wills agreement. For instance, Henia had not actually signed the document. The Court, therefore, rejected this ground of appeal.

There could be no secret trust created if the mother was not bound by the mutual Wills agreement

Next, the Court considered whether a secret trust had been created. A secret trust is created “when a testator leaves property to a person and that person secretly agrees with the testator to hold the property for the benefit of another person.”

While formal statutes do not support secret trusts, they can be enforced by equity. The reason for a secret trust is that certain gifts to one sibling over another may create family conflict. So the testator opts for secrecy, even after death.

At trial, Harry and Yehuda’s Estate explained that the trust was only attached to assets in Elias’ estate. Specifically, Harry wanted to go after assets from Elias’ estate that wound up with Harvey. He held that those assets were to be held in trust by Harvey for his brothers.

The Court of Appeal upheld the trial judge’s decision that there was no secret trust. After all, Elias had not transferred anything to Harvey. His assets were vested in Henia after his death, who was not bound by the mutual Wills agreement. Ultimately, it was up to Henia to decide to whom she would leave her estate.

The transfers after the father’s death were merely gifts

The trial judge found unconscionable procurement of Henia’s assets by Harvey after Elias’s death. This finding was not the subject of the appeal. Harry’s counsel conceded that if this finding were made, the assets would simply revert to Henia and not to Harry or Yehuda’s Estate. Instead, Harry argued that the transactions from Henia to Harvey should have been set aside.

The Court found that all transfers were consistent with Henia’s desire to give Harvey and Ashley her portion of the family’s holdings. Henia’s gifts to Harvey were to compensate him for his property management services and to forgive his debts. Her gifts to Ashley were simply gifts to her grandchild. Therefore, the gifts remained intact. For these reasons, the Court found no error in the trial judge’s decision.

Contact Derfel Estate Law for Effective Estate Litigation Services

At Derfel Estate Law, our experienced team of estate lawyers provides skilled advocacy for clients involved in a variety of estate and trust disputes, including Will challenges and issues related to executors or trustees. We are conveniently located in Toronto and proudly serve clients throughout the Greater Toronto Area and Ontario. To schedule a confidential consultation, contact us online or by phone at 416-847-3580.

July 27, 2022