In the recent decision in Giann v. Giannopoulos, 2024 ONCA 928 (CanLII), the Court of Appeal for Ontario upheld the lower court’s decision dismissing a Will challenge application as the evidence failed to meet a standard called the “minimum evidentiary threshold”.
This means that in order to be able to move forward with a Will challenge, the challenger must “adduce, or point to some evidence which, if accepted, would call into question the validity” of the Will in question. If the party disputing the Will is unable to do so, or if the party defending the Will is able to respond to the challenge, the Will challenge will be dismissed. The Court at this stage does not decide if the challenger’s evidence is true, but looks for some evidence that puts the capacity of the testator at issue, or some evidence of undue influence, and whether the evidence of the Will defender provides a complete answer.
In the case at issue, Fotios Giannopoulos died on October 24, 2022, leaving four children: Nick, Bobby, Bessie and Domniki. When Fotios died, he had two substantial assets, a home in Toronto, and a dry-cleaning business on Danforth Avenue in Toronto. Fotios’ wife died in 2016. Following his wife’s death, Fotios made a Will which divided his assets equally between his four children. However, Fotios also became depressed and unmotivated to continue running his business.
Most of Fotios’ care fell onto the shoulders of Nick, who lived in Toronto and worked at the dry-cleaning business. Bobby and Domniki were estranged. Bessie maintained a good relationship with Fotios, but lived in Florida with her family. Fotios was also cared for by a family friend, Yiota. Over the next few years, Fotios, Nick and Yiota grew close.
At the end of 2018, Fotios retired and went to Florida to spend time with Bessie. His health declined there, and he suffered two falls and a small stroke. Fotios returned to Toronto in 2019 and received treatment. In August 2019, he was noted as having had “an element of Alzheimer’s dementia and possibly a major depressive disorder.” However, after enrolling in a day program, his mental state improved significantly by January 2021 .
On April 1, 2021, Fotios executed a new Will which divided his home equally between Bobby, Bessie, Nick and the two children of Domniki, but left the dry-business to Nick alone, with Yiota as the alternate beneficiary. Around the same time, Fotios also executed a transfer of the dry cleaning business property on Danforth Avenue to Nick as a joint owner. Fotios left a contemporaneous note with his lawyers explaining his reasons for changing his Will, explaining that he wished to benefit Domniki’s children, and not Domniki directly, as he was afraid her husband would squander his property. He chose to give the business property on Danforth Avenue to Nick because Nick stood by him and showed an interest in him.
Bobby and Bessie challenged the 2021 Will but their application was dismissed for failing to meet the minimum evidentiary threshold.
On appeal, Bobby and Bessie argued that the application judge incorrectly found there was no evidence that Fotios lacked capacity when he executed the 2021 Will. The Court of Appeal described how the application judge found that Fotios suffered two discrete episodes of ill health, the first in Florida in 2019, which he recovered from, and the second in mid-2021when he was admitted to hospital with COVID-19 and a UTI, after which, his capacity was in serious question. However, the application concerned Fotios’ capacity at the time he made a new Will in April 2021. The medical records from January 2021 indicated that his mental health had improved significantly by that time. More was required than evidence of age-appropriate decline and symptoms of dementia. Moreover, the two discrete events of poor health at different periods did not bear on Fotios’ capacity when he signed the 2021 Will.
The Court of Appeal was not persuaded that the application judge made a palpable and overriding error in considering the evidence of undue influence. The application judge found that Bobby and Bessie had presented nothing more than “bald assertions of wrongdoing” which were fully and completely answered by the respondents’ evidence. In particular, Bessie recognized that it was only Nick who stopped his life to take over the dry-cleaning business, and that he was the only child who maintained a constant and true relationship with Fotios. Bobby also conceded that he became estranged from Fotios in 1998, and that after their mother died, Nick bore the burden of caring for Fotios. In addition, Fotios’ gerontologist’s notes repeatedly referred to Fotios’ expressions of gratitude to Nick and Yiota for their help, without noting any concerns about abuse.
Finally, the Court of Appeal was of the view that the application judge did not err in accepting one party’s evidence and rejecting another party’s evidence. The application judge also provided sufficient reasons in considering the validity of the Danforth property transfer, which was transferred around the same time as the 2021 Will, and was part of Fotios’ estate plan.
Take Away
This decision confirms that a party challenging a Will must have more than just bald assertions of testamentary incapacity and undue influence in order to move forward with a Will challenge. If the allegations are sufficiently answered by the propounder of the Will, a Will challenge is liable to be dismissed for failing to meet the “minimum evidentiary threshold.
