If you are looking to contest a will in Ontario, you have come to the right place. Disagreeing with a “final hour” change to a family will can have costly and sometimes unhappy consequences.
Brothers Livio and Franco Quaggiotto took their dispute to the Court of Appeal for Ontario (ONCA) in February 2019 after their mother revised her will 19 months before her March 2016 death. Eighty-seven-year old Maria Quaggiotto left the residue of her estate to her sons. A last-minute codicil in August 2014 changed all of that.
Contest a Will in Ontario
The residue is everything left over after any debts, taxes, fees and funeral or administration expenses are paid. It includes anything acquired after a will was written. Prior to the codicil, which is a signed and witnessed change, both sons shared the residue equally. The change gave Livio Quaggiotto the full residue. ONCA agreed the mother intended to “even up” the brothers’ assets by leaving the residue to the less financially advantaged brother.
But Franco Quaggiotto argued the Ontario Superior Court of Justice trial judge erred in deciding his mother understood both the codicil and full value of her estate. Having “testamentary capacity” requires the testator, or person making the will, to be aware of their assets’ value and magnitude. He stated that although his mother had general knowledge of her estate, she did not know and had not been told what its value was (Quaggiotto v Quaggiotto, 2019 ONCA 107 at para 5).
Court of Appeal for Ontario disagreed.
The appeal court found the mother’s solicitor’s assistant had handwritten notes about her holdings in the family corporations. A designated capacity assessor and practising geriatric nurse consultant testified the mother understood her assets and net worth. So did the solicitor who prepared the first will in 2011. Her long-time family physician testified she was fully capable of making decisions.
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Maria Quaggiotto’s assets were described at length in the codicil and the new solicitor and his assistant went over it “line by line”. In fact, the new lawyer sought the assessor’s opinion on her testamentary capacity and relied on the mother’s verbal instructions and handwritten letter in making the codicil.
ONCA cited the Supreme Court of Canada on competency (Orfus Estate et al v Samuel and Bessie Orfus Family Foundation et al, 2013 ONCA 225 at para 60) in making its ruling:
“A competent testator does not have to know the precise makeup of her estate. She only need know in a general way the nature and extent of her property.”
While some “suspicious circumstances” were set out at trial, ONCA and the trial judge concurred that Maria Quaggiotto was not coerced or intimidating into making the codicil and loved both sons.
For Franco Quaggiotto, contesting her will was expensive. Besides his legal fees, ONCA assessed him $20,000 in court costs, payable to his brother.
Before you contest a will, speak with a ClearWay Law wills and estates lawyer. We can go over the will with you and give you timely legal advice. Call our 24/7 Lawyer Hotline at 844-466-6529 or email info (at) clearwaylaw.com to book a consultation.
Without a residuary clause stating what to do with an estate’s residue, it can fall under the Ontario Succession Law Reform Act, RSO 1990 c S26, which applies when someone dies without a will. That means the court decides who inherits. Heirs may be a spouse or, if there is none, the deceased’s natural or adopted children or other blood relatives. Dying without a will has time and cost implications and the outcome may not be what you intended. We encourage you to contact ClearWay Law if you don’t have a will or your circumstances have changed since you wrote it.
Grounds To Contest a Will in Ontario
Were you promised something in person and it wasn’t in the will? That is not grounds to contest the will. Everything needs to be in the will to be considered. Wills must be in written form.
It doesn’t matter if they wrote the will on paper or online. As long as it is in written form and has two witnesses, it should be valid.
Most common reasons people contest wills are:
- Not understanding what they are doing (normally because of mental illness)
- Not taking care of spouse or child
- Forcing the person to make a will using fear (most common reason)
- The will is fake
Should You Have Multiple Wills?
A will is the departed’s last wishes. Most peoples fear when dying is that someone will contest a will that they made. Which is why courts are reluctant to overturn a properly executed will. When the testator (the deceased) creates two wills, courts can be challenged to decide whether to uphold one or both.
Having two wills can be smart if you have certain assets. For instance, shares in a private company go directly to beneficiaries and aren’t taxed on your death. A secondary will can include these. That makes it easier for your executor to deal with those assets separately from others, such as bank accounts, where probate taxes may be due.
Probate taxes add up. In Ontario, estates pay $5 per $1,000 for the first $50,000 of assets and $15 per $1,000 for assets over $50,000.
When Sheilah and John Milne died in October 2017, Ontario Superior Court of Justice decided that the couple’s primary wills were invalid. The primary wills named certain assets to go to their heirs. Plus the wills allowed their executor to decide how to allocate any other assets that didn’t require a court’s approval.
The Milnes also had secondary wills. Those wills were similar to the primary wills and included the phrase “all property owned by me at the time of my death.” An allocation or “basket” clause in the primary wills gave the executor the power to decide which assets belonged to these secondary wills or were part of the primary wills.
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The probate court overturned the primary wills. First, the secondary wills included everything in the primary wills, meaning they overlapped. Secondly, the primary wills gave the executor too much authority, the court decided. Ontario estate law requires that a will be clear about the “subject matter” or property being given to heirs.
Calling wills a trust, the judge ruled the primary wills could not give the executor the power to make decisions after the couple’s death. “It is not enough to say that the assets subject to the trust will be determined later and will then be governed by one will or the other,” he wrote.
Contest A Will In Ontario
The estate decided to appeal the decision.
Basing its decision on another recent case (Panda Estate (Re), 2018 ONSC 6734), Ontario’s Divisional Court disagreed that a will is a trust. And even if it was, the Milnes’ primary wills were clear. And that, made them valid (Milne Estate (Re), 2019 ONSC 579).
Ontario residents with two wills can now rest easy.
Be assured if you have multiple assets, ClearWay Law’s wills and estates lawyers can help you decide if having more than one will is a smart move. If you want to create a will or contest a will, call our 24/7 Lawyer Hotline at 844-466-6529 or email info (at) clearwaylaw.com to book a consultation.