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Challenging the Validity of Wills While a Testator Is Still Alive

4 minute read

Can you challenge the validity of a will while the testator is still alive? In Palichuk v. Palichuk 2023 ONCA 116, the Court of Appeal for Ontario said no.

The background: Nina Palichuk has two daughters, Linda Palichuk and Susan Palichuk. On September 11, 2020, Nina executed four instruments:

  1. A will that disinherited Linda and named Susan as the main beneficiary of her estate;
  2. A continuing power of attorney for property that named Susan as the sole attorney;
  3. A power of attorney for personal care that named Susan as the sole attorney;
  4. A transfer and declaration of trust transferring Nina’s home in Acton to Susan as a bare trustee.

Linda brought an application seeking a declaration that Nina was incapable of managing property and personal care and her appointment as Nina’s guardian. She also sought the “opinion, advice, and direction of the Court” with respect to the above four instruments, claiming Nina was incapable of executing them or that they were executed as a result of Susan’s undue influence over Nina.

Nina brought her own application, seeking to have Linda removed from an account held by Nina at BMO Nesbitt Burns. During the course of the litigation, Nina consented to be assessed by a geriatric psychiatrist, who found her to be capable of, among other things, making a will and granting and revoking powers of attorney for property and personal care.

The applications judge dismissed Linda’s application, and Linda appealed. Her appeal raised several issues, but for the sake of brevity, this blog will focus on only one of Linda’s grounds of appeal: that the application judge erred in failing to address the issue of undue influence with respect to Nina’s execution of her testamentary documents.

During the hearing of the application, Linda attempted to have the applications consolidated and converted into an action, citing triable issues with respect to Nina’s capacity to execute her testamentary documents and Susan’s alleged undue influence over her. The application judge declined to do so, essentially holding that the validity of the testamentary documents was contingent on Nina’s death. Nina, still alive and having been found capable, could change her testamentary documents at any time, resulting in a waste of judicial time and resources. The Court of Appeal for Ontario agreed with the application judge’s decision.

Typically, a will may be challenged on the basis that the testator was incapable, the will is a product of undue influence, and/or the will was made under suspicious circumstances. The Court of Appeal for Ontario held that determining the validity of a will “depends upon a future contingency—the testator’s death” (para 67). Trotter J.A. referred specifically to section 22 of the Succession Law Reform Act, which provides that a will speaks from death.

The court also identified public policy reasons to prohibit will challenges before the death of the testator. Testators may change the will as often as they like prior to death. There is no way to determine what property will be left, if any, to distribute until after a testator dies. Beneficiaries may predecease the testator. If will challenges were permitted during a testator’s lifetime, as Trotter J.A. said at para 71, “the courts would be inundated with litigation that is hypothetical during the lifetime of the testator, with the potential for re-litigation after their death.”

One aspect of the capacity issue that the Court of Appeal for Ontario did not touch upon was the inherently fluid nature of capacity. A testator’s capacity to make a will is determined at the time they make the will. This can be problematic for testators whose medical records show a history of cognitive deficits. For example, a person with dementia could be lucid enough to meet all the requirements of the Banks v. Goodfellow test at the time of execution and yet exhibit strong symptoms before and after. Accordingly, detailed notes by the drafting solicitor are critical in will challenge cases, and their evidence will be essential in determining whether or not the will is valid.

Palichuk also contains very helpful commentary from the Court of Appeal for Ontario on capacity issues in guardianship applications, granting powers of attorney, and in making transfers of property. I commend this case to my fellow estate litigators, and our Estates team is always available for a consultation.

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Kimberly A. F. Cura

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