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WILLS - Testamentary capacity - Legal capacity - Knowledge and approval - Of contents of will - Mental capacity - Evidence - Onus of proving capacity

Monday, January 29, 2018 @ 8:27 AM  


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Appeal by Stekar from trial judgment dismissing his application for probate of a 2012 Will. The trial judge found that there were suspicious circumstances surrounding the changing of the deceased’s 1999 Will and the making of the 2012 Will, that the deceased lacked testamentary capacity at the time of the execution of the 2012 Will and that the deceased had no knowledge of and failed to approve the contents of the 2012 Will. The 2012 Will was prepared at a time when the deceased was of questionable capacity due both to his historical and recent health issues and hospitalization. The 2012 Will provided for a radical change from the beneficiaries named in the 1999 Will. The 2012 Will was typed, but the deceased did not own a computer or a typewriter and had no means to create a typewritten document. In various conversations in the days prior to the making of the 2012 Will, the deceased had made multiple, contradictory statements regarding the identity of his intended beneficiaries.

HELD: Appeal dismissed. The evidence strongly supported the trial judge’s finding of suspicious circumstances surrounding the 2012 Will. The trial judge did not err in his application of the test for testamentary capacity. On the evidence, there could be no sustainable suggestion that the deceased’s testamentary capacity was free from doubt at the time of the execution of the 2012 Will. His clinical symptoms could not realistically be divorced from his mental health. The trial judge was entitled to conclude that his medical condition, including his delusional state and any personality disorder from which he might have suffered, clearly bore on his mental health and on the question of his testamentary capacity. The evidence of the deceased’s medical condition, recent hospitalization and clinical symptoms, both during and after his hospitalization, at a time proximate to the execution of the 2012 Will, supported the trial judge’s finding that the deceased’s testamentary capacity had not been established. The cumulative circumstances surrounding the making of the 2012 Will cried out for an explanation and for evidence that the deceased, in fact, had knowledge of and approved the contents of the 2012 Will. There was no error in the trial judge’s conclusion that the appellant failed to satisfy his burden to establish that the deceased had knowledge of and approved the contents of the 2012 Will. The proposed fresh evidence that the appellant sought to tender on appeal would not alter this conclusion and did not meet the test for the admission of fresh evidence on appeal in a civil case.

Stekar v. Wilcox, [2017] O.J. No. 6721, Ontario Court of Appeal, J.M. Simmons, E.A. Cronk and D. Paciocco JJ.A., December 21, 2017. Digest No. TLD-January292018002