Estate Litigation and Employment lawyer Reshma Kishnani article "Unsuccessful challenge to validity of will while testator still capable" was published in Law360 Canada. The article addresses a court case where Reshma writes on the court's view on personal autonomy and the presumption of capacity, as well as the importance of respecting a testator's right to make their own decisions. 

The article was originally published on April 13, 2023. To read it in Law360 Canada, part of LexisNexis Canada Inc., visit: https://www.law360.ca/articles/45605/unsuccessful-challenge-to-validity-of-will-while-testator-still-capable (subscription required).

Unsuccessful challenge to validity of will while testator still capable

Testamentary freedom should not be interfered with when a testator is alive and capable. The case of Palichuk v. Palichuk, 2023 ONCA 116, reiterated this concept and highlighted that the law values personal autonomy and presumes capacity unless the contrary is proven

This case involved a mother, Nina Palichuk, who is widowed, and her two daughters, Linda and Susan Palichuk. Nina is in her early 90s and lived in her two-acre property in Acton, Ont., (Acton home) for approximately 50 years with her husband. Nina’s husband died in 2015. Susan retired in 2016 and moved in with Nina at that time. In 2016, Nina named both Linda and Susan as her attorneys for property and personal care. She also added Linda as a joint account holder to her investment account. Nina continued to live in her home until 2019 when she moved to an assisted living retirement home. Nina and Linda’s relationship deteriorated. In September 2020, Nina made changes to her will (2020 will) and disinherited Linda from her will, removed Linda as her attorney for property and personal care and transferred her Acton home to Susan as bare trustee.

When Linda discovered this, she commenced a guardianship application against Nina and Susan, seeking to orders to have Nina declared as incapable and appointing Linda as guardian of property and personal care as well as asking the court to assess the validity of the 2020 will, the changes to the powers of attorney and the transfer of the Acton home to Susan on the basis of undue influence.

Nina, upon being served with Linda’s application, commenced with her application seeking an order to remove Linda as a joint account holder on the investment account as Linda refused to be removed from the account. Nina underwent capacity assessments that affirmed her capacity to manage property and personal care decisions, to revoke and give powers of attorney, to make a will and to make an inter vivos gift.

The application judge in Palichuk v. Palichuk, 2021 ONSC 7393, Justice Roger Chown, in summary found that Nina was not incapable of managing her property or making personal care decisions. Accordingly Linda’s guardianship application was denied. Justice Chown noted that Nina’s autonomy to make testamentary decisions was of tantamount importance and that she had the capacity to do so including to make new powers of attorney, to change her will and give an inter vivos gift. He granted Nina the relief she sought against Linda and ordered that Linda remove herself from Nina’s investment account. Costs on partial indemnity basis in the amount of just over $100,000 were ordered to be paid by Linda to Nina and Susan as result of her unsuccessful application.

Justice Chown provided a succinct analysis of the criteria for capacity under the Substitute Decisions Act supporting autonomy for adults to make testamentary decisions and the presumption of capacity. He noted that there was no need to determine the validity of the 2020 will, powers of attorney and transfer document as Nina had the capacity to execute the same and could prepare new ones as long as she had capacity to do so. He stated “the issue Linda seeks to have adjudicated [of undue influence] is hypothetical and premature. The court should not expend its resources or allow the parties to expend their resources in a wasteful exercise.”

Linda appealed stating that Justice Chown failed to consider the undue influence Susan had over Nina. The court denied Linda’s appeal and highlighted that the validity of the 2020 will could not be challenged while Nina was still alive given that she could change her will at any time and that a will only takes effect upon death as codified by s. 22 of the Succession Law Reform Act. The court also agreed with Justice Chown in that considering the issue of undue influence was untimely when Nina was still alive and capable and doing so would be a waste of judicial resource at great expense to the parties.

This case provided a valuable summary of the test for capacity and the court’s view on an interesting issue with respect to challenging the validity of a will while a testator is still alive. There is a hefty price on litigation and all of the parties have had to endure the same.

It is unclear whether Nina and Linda will reconcile and whether Nina will make further changes to her 2020 will. What is clear is that Nina’s autonomy to make and choose her attorney for property and personal care and to make testamentary decisions should be preserved, particularly while she is capable.

Please contact the author, Reshma Kishnani at rkishnani@mindengross.com, for more information. 

Re-printed with permission from Law360 Canada (www.law360.ca), part of LexisNexis Canada Inc. originally published on April 13, 2023.

This article is intended to provide general information only and not legal advice. This information should not be acted upon without prior consultation with legal advisers.