To Contest or Not to Contest

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.

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).

ONCA 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.

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 dispute a family 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 (877) 978-1669 or email to book a consultation.

FYI, 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. Since 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.