Testamentary capacity of testatrix was supported by evidence of lawyer who took instructions

Estates and Trusts – Estates – Will challenges

Testatrix passed away in August 2016 at age of 95. In November 2010, at age of 89, testatrix executed will naming son J and two grandchildren as beneficiaries. J was named primary trustee but, due to advanced dementia, was incapable of acting in that capacity. Applicant C was one of beneficiary grandchildren and was named as alternate estate trustee. Respondent R was spouse and litigation guardian of J. R objected to appointment of C as estate trustee based on proposition that 2010 will should be declared invalid on grounds that testatrix lacked testamentary capacity at time of execution. C brought application for appointment as estate trustee. Application granted. Testatrix more likely than not had testamentary capacity at time 2010 will was made. Testatrix appeared to understand what she was doing and knew, in general terms, what she owned. Testatrix deliberately left daughter out of will due to estrangement. Testamentary capacity of testatrix was supported by evidence of lawyer who took instructions. Will was declared valid and C was appointed as estate trustee.

Kay v. Kay Sr. (2019), 2019 CarswellOnt 9538, 2019 ONSC 3166, Robert L. Maranger J. (Ont. S.C.J.).

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