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Posts Tagged: Will Challenges
10 ResultsA Tale of Two Suicide Notes
2020 was an unusual year. Not only was there a global pandemic, but by sheer coincidence there was not one, but two estates applications in different provinces to determine whether a suicide note was a valid will. While the suicide note in Ontario was not found to be a valid Will, the one in British…read more
Ontario Has Jurisdiction Over Invalid Italian Will
Antonina’s father died during his vacation to Italy. She and her two siblings then received a purported handwritten will made just before his death which named their cousin Anna as a beneficiary. In Re Estate of Domenico Grillo, 2015 ONSC 1352, Justice Newbould found Ontario had jurisdiction over Antonina’s application to set aside this holograph…read more
Divisional Court Guidance on “Proper Support”
Bonnie and Danny had a 12 year common law relationship. In a modern twist on the typical fact scenario, Bonnie was the older, successful business woman and Danny was the younger man who left his job at Bonnie’s car dealership to look after things at home. At trial, Justice Greer found that they were very…read more
Will Challenges by Estate Trustees – A Hard Sell
If you take steps to administer an estate pursuant to a will or to otherwise behave as if a will is valid, you may lose the right to later challenge that will. In Neuberger v. York, a decision of Justice Greer released in November 2014, she considered a motion to dismiss a will challenge that…read more
Alcoholism Alone Not Enough to Negate Testamentary Capacity
In daBalinhard, the Saskatchewan Court found that a history of alcoholism, short term memory loss and unusual behavior was not enough to sustain a will challenge. After a forty-year marriage, the testator, John, and his wife, Shirley, separated on August 16, 2011. Two months after their separation, John executed a new will on October 20,…read more
Court Allows Delay in Will Challenge
When someone tries to challenge a will in court, undue delays on the challenger’s part can be fatal to their claim. The Rules of Civil Procedure, Ontario’s legal procedure guidelines, say that a civil claim can be dismissed for delay if, after the initial pleadings stage, the action isn’t set down for trial within six…read more
Correcting a Mistake in a Will – What did the Testator Intend
Elizabeth Ann McLaughlin died at the ripe old age of 98. She was predeceased by her husband. Together they had six children, including Daniel. Daniel, as estate trustee, sought to rectify what he characterized as a solicitor’s mistake in his mother’s secondary will. For many years prior to her death, Mrs. McLaughlin had no relationship…read more
A Wedding, A Will Signing, and a Witness
In Zerbinati v. Zerbinati 2013 CanLII 86428 (ON SC), the respondents to an application for the determination of the validity of the last will and testament of Valentino Mario Zerbinati (“Valentino”) brought a motion for “non-suit” on the grounds that the formal validity of Valentino’s Will had not been established. The applicants were the testator’s son, Valentino…read more
Lawyer’s Questionnaire Admitted to Probate as a Will
Courts are sometimes asked to determine if a “testamentary-like” document is a will. In British Columbia, an executor brought an action to prove in solemn form that a questionnaire that the testator (“Ms. Garnett”) filled out and signed before two witnesses shortly before her death was a will that could be submitted for probate. Ms. Garnett was…read more
Assessing Testamentary Capacity
An article was published in the American Journal of Psychiatry in May 2007 and can be found at www.ajp.psychiatryonline.org. Among other things, the article considered the common cognitive screening tests used by the medical profession to assess testamentary capacity. By way of introduction, the article states: Clinicians and legal experts must understand that cognitive tests…read more