Testator changed her will to exclude her son, a deviation from her earlier wills
The Ontario Court of Appeal upheld the validity of a last will, rejecting the argument that the testator was under “insane delusions” when she disinherited one of her sons.
In Roe v. Roe, 2024 ONCA 179, Robert Mark Roe disputed his mother, Beverly Grace Roe's last will that she executed in 2005. Beverly, who passed away on July 12, 2014, at the age of 90, had changed her will to exclude Mark, a deviation from her earlier wills, which divided her assets equally among her four sons.
Mark challenged the 2005 will, questioning Beverly's testamentary capacity and alleging undue influence by his brother, Richard “Rick” Thomas Roe, among other concerns. In a related action, Mark sued the other heirs to set aside monetary gifts that Beverly made before her death. However, Mark conceded that if he was not successful in setting aside the 2005 will, he had no standing to challenge the gifts.
The application judge dismissed the action, finding that the 2005 will was made under suspicious circumstances but that Beverly had the requisite testamentary capacity to make it and was not operating under “insane delusions” when she disinherited Mark, which the appellate court upheld.
The appellate court's analysis addressed the suspicions around the will's circumstances, including Beverly's early Alzheimer's diagnosis and the total disinheritance of Mark. Despite these factors, the court agreed that Beverly was not operating under "insane delusions" when she decided to disinherit Mark.
The appellate court agreed with the application judge’s finding that while Beverly acted irrationally and hyperbolically at times, there was a factual foundation to ground her views. Furthermore, the appellate court found that Beverly had a sufficient understanding of her assets when instructing her lawyer, dismissing claims to the contrary. The court emphasized that a competent testator does not have to know the precise make-up of her estate, only in a general way the nature and extent of her property.
Ultimately, the court dismissed the appeal, finding no basis for appellate interference with the application judge’s findings.
