Testators Not Required to Have ‘Encyclopedic Knowledge’ of Assets to Make a Valid Will

July 25, 2019

Mark Feigenbaum

A recent Ontario Court of Appeal decision stated that a testator is not required to have “encyclopedic knowledge” of their assets in making a valid will.

What Happened?

The case involved an 87-year old mother and her two sons. The mother executed a codicil in August 2014 and passed away in March 2016. 

The codicil left the residue of her estate to one of her sons (“first son”). Her previous will had divided the residue equally between the first son and the other son (“second son”).

At the first trial, there was extensive evidence in the record that suggested that the mother’s disposition was not motivated by a lack of love for the second son but by a belief that he was in a better overall financial position than the first son and that the codicil would even up the discrepancy between the two.

Following the 10-day trial, the trial judge found in favour of the first son and upheld the validity of the codicil. The trial judge found that the first son had satisfied his burden of proving due execution of the codicil and knowledge of its contents. There were suspicious circumstances but the first son had met his burden of proving testamentary capacity and had successfully rebutted any inference of coercion or undue influence.

The second son appealed that decision. Most of the issues he raised involved factual findings made by the trial judge or questions of mixed fact and law. The second son submitted that the trial judge misapprehended the evidence and erred in finding that the mother had knowledge of the contents of her will when she executed the codicil. In particular, he submitted that to have testamentary capacity, a testator must be aware of the value or magnitude of her estate. He argued that the trial judge found that the mother had a general knowledge of her assets, however, this was inadequate to meet the knowledge requirement and in any event, there was no evidence that the mother knew or was told about the value of her assets.

The Appeal Decision

The Court of Appeal rejected the second son’s submissions, stating that the trial judge’s factual finding that the mother had knowledge of her assets was supported by the evidence, stating:

“The Codicil described her assets in detail. Lastly, the law does not require that a testator have an encyclopedic knowledge of her assets. As stated by Justice Laskin […]:

‘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.’”

In addition, the court rejected the second son’s submissions that there was insufficient evidence to dispel the suspicious circumstances or that the trial judge imposed too high a burden in defining undue influence.

As a result, the court dismissed the appeal with costs of $20,000, to be paid by the second son to the first son. 

Get Advice 

If you or a loved one is planning on the distribution of an estate in preparation for a future event such as a will, it is important to speak to a trusted legal advisor. It is usually best to plan an estate ahead of time, to foresee issues before they arise and have them handled according to the wishes of the grantor.

Mark Feigenbaum uses his deep experience with and thorough knowledge of both Canadian and U.S. estate legislation to help clients create effective strategies to manage, transfer, and preserve their wealth. Mark creates custom-tailored tax and estate solutions for each of his clients. His significant knowledge and stellar reputation mean that he is regularly consulted by other tax and estate lawyers, accountants, financial planners, and other professionals on complex cross-border and other estate matters. Mark assists clients in both Canada and the U.S., who have both cross-border, or single jurisdiction assets.

Effective estate planning and addressing estate tax issues requires guidance from a deeply knowledgeable and experienced lawyer and tax professional. Mark Feigenbaum can help you avoid the biggest legal and financial risks that can arise in planning your financial future. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to discuss minimizing your tax exposure and that of your heirs.


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