In a December 2022 three-day trial before Madam Justice Gilmore, Jonathan Schrieder successfully argued for the invalidation of a will that disinherited our client. This decision is significant because it indicates the importance of having mental capacity while signing a Will to understand the nature and significance of a Will. In this case, the evidence was sufficient to show the testator’s incapacity to sign the deceased, Arnold Cheshire’s (“Arnold”) 2017 Will and Powers of Attorney documents.

Arnold passed away on February 5, 2019. He had a properly executed September 28, 2017 Will (the “2017 Will”). He also had a previous Will executed in 1991 (the “1991 Will”).

The Will challenge was advanced by the Applicant Simone De Smedt (“Simone”), Arnold’s common law partner of 34 years. Simone wanted the court to set aside the 2017 Will and have Arnold’s 1991 Will declared valid. The 1991 Will named Simone as the sole beneficiary. Simone was named as Arnold’s POA for Property and Personal Care in 2003. However, Arnold’s son John Cheshire (“John”) wanted the 2017 declared valid because it named him as Estate Trustee and left the residue of the Estate equally to John and Simone. On the same date as he executed the 2017 Will, Arnold named John as his Power of Attorney (“POA”) for Personal Care and Property.

The court considered this contention because Simone argued that the 2017 Will was signed under suspicious circumstances while Arnold was hospitalized and suffering from severe dementia. The 2017 Will was prepared by a lawyer arranged by John Cheshire who had never previously dealt with Arnold. Further, Simone was away working at the time the arrangements for the 2017 Will were made. The lawyer who drafted the 2017 Will, had Arnold “sign off” on the known risks of signing the 2017 Will in the circumstances.

The court considered two issues: is this case appropriate for summary judgment? and were there suspicious circumstances related to the 2017 will and POAs? Regarding issue one, counsel agreed that this matter was appropriate for summary judgment. Further, the court stated that they were complete with respect to all the witnesses the parties agreed should testify, the available medical records and the ability of the Court to observe both John Cheshire and Simone while they gave evidence.

Issue two was divided into three sub issues: events surrounding the preparation of the will, events that call into question the capacity of the testator, and undue influence. Firstly, the court decided that the events surrounding the preparation of the will were not suspicious. The lawyer who drafted the 2017 Will could have completed several additional steps such as performing an initial interview with Arnold and then returned with a Will based on that interview, and take more detailed notes of exactly what John Cheshire told her and what Arnold told her. However, the fact that those things were not done did not mean that suspicious circumstances were present. We were surprised that Madam Justice Gilmore did not find evidence of “suspicious circumstances.” Secondly, the court found that there were several events that called into question the capacity of the testator. The court relied on Banks v Goodfellow (“Banks”)which is the leading authority on the criteria for testamentary capacity. Banks outlined the following five factors to establish testamentary capacity:

  1. Understanding the nature of the act of making a will and its consequences;
  2. Understanding the extent of one’s assets;
  3. Comprehending and appreciating the claims of those who might expect to benefit from the will, both those to be included and excluded; 
  4. Understanding the impact of the distribution of the assets of the estate; and
  5. That the testator is free of any disorder of mind or delusions that might influence the disposition of his or her assets.

After considering Arnold’s medical history regarding severe dementia, Arnold was not of sound mind, memory or understanding at the time of signing the 2017 Will and was therefore unable to meet the requirements in the Banks case. Thirdly, the court did not find it necessary to address the issue of undue influence, however, Madam Justice Gilmore alternatively stated that the court would have found no undue influence in the drafting or execution of the 2017 Will. The court stated that John Cheshire did not coerced his father to the point that he no longer exercised his free will.

In conclusion, this decision demonstrates that at the time of execution, the testator needs sufficient mental capacity to understand the nature and significance of a Will. Consequently, a signed Will may be set aside for failure to comply with understanding the nature and significance of a Will.

Aylina Dhanji is the author of this blog, Jonathan Schrieder is the lawyer that argued the case. If you have a question about this decision or you are experiencing a similar issue, please contact Jonathan at 416-777-5237.