Ontario court upholds validity of will made by deceased woman despite her great-nephew's objection

Respondent failed to adduce evidence which would call into question the validity of the will: court

Ontario court upholds validity of will made by deceased woman despite her great-nephew's objection

The Ontario Superior Court of Justice has refused to invalidate a will executed by a deceased woman despite her great-nephew’s refusal to recognize its validity.

In Dimakarakos v. Alimena, 2022 ONSC 4386, the testatrix made wills in 1997, 2014, 2016, 2018, and 2019. The primary asset of the estate is the testatrix’s home, with an estimated value of $1.55 million. The applicant is the named trustee of the testatrix’s estate, while the respondent is the testatrix’s great-nephew by marriage and estate beneficiary.

In his notice of objection, the respondent opposed the issuance of a certificate of appointment of estate trustee to the applicant concerning the 2019 will due to alleged lack of testamentary capacity, undue influence, and suspicious circumstances surrounding its execution.

The applicant then applied with the Superior Court for an order vacating the notice of objection. He alleged that the respondent failed to meet the minimal evidentiary threshold for his objection.

In granting the application, the Superior Court found that the respondent failed to adduce evidence which would call into question the validity of the 2019 will.

According to the court, the respondent’s evidence that the testatrix was in and out of the hospital and her medication made her moody, aggressive, and unwell cannot be considered proof that she was experiencing health issues that potentially resulted in a loss of testamentary capacity at the time of the execution of the 2019 will.

Moreover, the court determined that the other evidence that the testatrix suffered from hearing loss and sensitivity to sounds or lights failed to shed any light on her testamentary capacity. The court added that the respondent also failed to provide evidence of the reasons for the hospital visits that may have affected the testatrix’s testamentary capacity.

“This evidence, considered with all of the evidence, does not call into question the validity of the 2019 will,” Justice Peter Cavanagh wrote.

The court noticed that the respondent relied on the evidence that the testatrix was seeing a psychiatrist and being prescribed medication − the dosage of which had increased before she executed the 2019 will. He argued that this evidence was sufficient to meet the minimal evidentiary threshold. The court disagreed.

“The respondent’s suggestion that the increase in the dosage of medication prescribed to the testatrix in late 2018 may have affected her testamentary capacity in relation to the 2019 will is nothing more than speculation,” Justice Cavanagh wrote. “This evidence, when considered together with the full evidentiary record, does not call into question the 2019 will.”

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