In a January 3, 2020 judgment handed down by the Ontario Superior Court of Justice, the Court upheld the validity of a Will that was executed by a testator mere weeks before his death.


Mr. Eduardeo Medeiros died from metastatic lung cancer on June 30, 2015. On June 8, 2015 Mr. Medeiros executed a Will (“the 2015 Will”). His prior Will was executed on November 15, 2004 (“the 2004 Will”). The only difference between the two Wills was who received Mr. Medeiros’ one-half interest in the home he owned with the Respondent, Ms. Moniz. Ms. Moniz was Mr. Medeiros’ common law spouse of 18 years. The 2004 Will bequeathed that one-half interest to his children, while the 2015 Will bequeathed that one-half interest to Ms. Moniz. The other aspects of the Will bequeathing his RRSPs and residue of his Estate to his children, and his car to his son, remained unchanged.

The Application

Mr. Medeiros’ children brought an Application to declare the 2015 Will invalid in favour of the 2004 Will, on the grounds that Mr. Medeiros did not have the requisite testamentary capacity to execute the 2015 Will, and that he was unduly influenced by the Respondent when he executed the 2015 Will. Ms. Moniz’ position was that the 2015 Will was a proper reflection of Mr. Medeiros’ desire to have her properly looked after upon his passing.

The evidence for the Respondent included an Affidavit from Mr. Goose, the Lawyer who drafted both Wills. Mr. Goose’s evidence was that Ms. Moniz waited outside while Mr. Goose met with Mr. Medeiros privately. Mr. Goose questioned Mr. Medeiros, satisfied himself as to his capacity, and concluded that Mr. Medeiros had provided instructions for the 2015 Will without any undue influence.

The Applicants retained a psychologist to do a retroactive capacity assessment on Mr. Medeiros to determine whether he would have had testamentary capacity, based on Mr. Medeiros’ medical records, and information provided to her by the Applicants.

The Court’s Ruling

Justice Shaw reiterated the long standing principle that testamentary capacity is a rebuttable presumption, which can only be rebutted by the Applicants proving, on a balance of probabilities, the presence of suspicious circumstances. Her Honour concluded that the Applicants in this case had not been successful in rebutting that presumption.

The Court found that there was insufficient evidence that Mr. Medeiros’ pain level and medications would have caused him any mental impairment sufficient to rebut the presumption. In reaching that conclusion, considerable weight was given to the evidence given by Mr. Goose, who, importantly, had known Mr. Medeiros for a number of years prior to the execution of the 2015 Will. Conversely, the Court placed “little reliance” on the evidence given by the psychologist who did the retroactive capacity assessment, as her evidence was only based on Mr. Medeiros’ medical records and erroneous information provided to her by the Applicants.

The Court also found that the 2015 Will did not constitute a significant change from the 2004 Will, the 2015 Will made testamentary sense given Mr. Medeiros’ relationship with Ms. Moniz, and the factual circumstances surrounding the execution of the 2015 Will were not suspicious. It was also noted that Ms. Moniz was not instrumental in the preparation of the 2015 Will, and that there was no evidence led by the Applicants to support their allegation of undue influence.

The Takeaway

This case clearly shows that the presumption of testamentary capacity is not automatically rebutted by a Will being made shortly before the testator’s death. Evidence of the testator’s medical condition, and evidence given by the drafting Lawyer, and any retroactive expert assessor will be carefully assessed to determine whether the presumption is rebutted. While the Applicants in this case were unsuccessful, it is fair to assume that the success of such cases in the future will turn on their particular facts.

Jessica Telfer is the author of this blog and member of the Estate Litigation practice group. For more information on this decision or if you have a question about a similar case, please contact Jessica at 416-777-5228.