Michael Ford (post until Oct. 31/19)
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No new wills after testamentary capacity lost

Family members create problems for themselves when they encourage a person to sign a new will after they’ve lost testamentary capacity, Brampton lawyer-linguist Suzanne Deliscar tells AdvocateDaily.com.

Ontario’s Court of Appeal recently upheld a trial judge’s decision to invalidate two wills made by a successful businessman within months of his diagnosis of brain cancer following a seizure.

The unanimous appeal court panel found the judge made no errors when ruling the man had lost testamentary capacity when he signed the new wills, which disinherited his daughter, his only child.   

“No one is helped when you have someone sign documents when they’ve clearly lost capacity,” says Deliscar, principal of Deliscar Professional Corporation, a law firm that offers services in English, French and Spanish. “People struggle with this idea, but once someone has lost capacity, they can’t execute any more documents. It’s too late.”

Still, she says beneficiaries who want to challenge a will for any reason need to back up their claims with evidence.

“People think it’s easy to challenge a will, but you really do need to have proof. You can’t just say you believe the testator lacked capacity, was unduly influenced or there was some other problem with the execution if it can’t be supported by evidence,” Deliscar explains.

In the appeal court case, a trial judge sided with the testator’s daughter, who argued her father’s wills were made after his diagnosis and executed when he lacked testamentary capacity. That resulted in an intestacy under which the daughter was entitled to the man's entire $7.5-millon estate, prompting the estate trustees administering the estate to appeal. But the appeal court upheld the original judgment.

“We see no palpable errors of fact. The inferences drawn by the trial judge were reasonably supported by the evidence. We see no errors in the analysis or the application of the law by the court below,” the panel wrote, dismissing the appeal.

The trial judge also barred the trustees administering the estate from reimbursement out of the proceeds of the estate — leaving them personally on the hook for more than $300,000 in legal costs — after he found they had acted unreasonably by rejecting two offers to settle from the daughter.

The Supreme Court of Canada recently denied the trustees a hearing at the nation’s top court after rejecting their application for leave to appeal to the nation’s top court.

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