Will Invalid for Lack of “Knowledge and Approval” When Executed

Will Invalid

Calderaro v Meyer 2011 ONSC 5395 is an Ontario case where a will invalid as the deceased did not have knowledge and approval of the wills contents when it was executed.

The testator died in 2009.

Prior to that he lived in a common law relationship from Febraury 2005-February 2007 on property that the deceased had purchased.

After they separated the testator and his former partner signed an agreement that provided that after he died the property would become hers.

The testator suffered a stroke in February 2009 and his condition went rapidly downhill.

He subsequently sought to executre a will, which made his former partner the beneficiary of the same property.

He gave his wife the reside of the estate.

The testator was instructed to hold his mother’s hand and squeeze it to confirm that he understood and approved the terms of the will that was read to him.

The former partner brought an action for a declaration that the will was valid, or alternatively, the agreement for the land was binding.

 

Both claims were dismissed.

 

The will was invalid as the testator did not “know and approve ” of the contests of the will when he executed it, and thus it was invalid.

There was no evidence led by the mother that he understood the provisions of the will that were read to him

 

The court held there three criteria that must be established by the propounder of the will, who has the onus of proving its validity:

 

A) That the will was executed;

B) That the tesator had knowledge and approval of the will;

C) That the testator had the requesite capacity to make a will.

 

The Court found that due to his medical situation the requiements of “knowledge and approval” and testamentary capacity merged.

Hall v Bennett Estate 50 ETR (2d) 72   was followed:

The material time in determining testamentary capacity is when the testator signs the will.

The test to be met by the propounder is high

The propounder must establish not only that the testator was able to communicate his or her testamentary wishes, but also that those wishes are the product of  “sound and disposing mind”

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

More Posts - Website - Google Plus