September 26, 2023

Dying Mother Confirmed as Succesful When Eradicating Two of Three Youngsters in Will

A dying, cancer-ridden mom determined to chop two of her three grown youngsters out of her Will. Ought to the court docket overturn it after her demise?

Not in keeping with the Ontario Court docket of Attraction in a current case referred to as Di Nunzio v. Di Nunzio.  

The details concerned a girl named Rosalba, who died at age 80 leaving what turned out to be a hotly-contested Will. Though she had three now-adult youngsters – Robert, Lucia, and Teresa – Rosalba’s 2017 Will expressly disinherited the primary two of them, leaving daughter Teresa to be the only real beneficiary and property trustee.

Not surprisingly, the disinherited offspring felt aggrieved. Considered one of them, Lucia, introduced a court docket utility: She objected that her mom merely didn’t have authorized capability when the Will was made, which was about 16 months earlier than her demise. Lucia pointed to Rosalba’s spreading most cancers and declining well being, her power ache, and the consequences of her remedy and heavy medicine. Her brother Robert was additionally capable of testify that some days his mom Rosalba’s ache was so extreme that she couldn’t even interact in dialog.  Lucia claimed her gravely sick mom had been unduly influenced, and that the circumstances have been “suspicious”. 

On this foundation, Lucia requested the court docket to have her sister Teresa’s Certificates of Appointment as Executrix put aside, and to have Rosalba’s Will probably be declared invalid and unenforceable.

At trial, the decide declined to make such an order. Lucia appealed, however the Court docket of Attraction upheld the sooner ruling. Rosalba’s Will was declared legitimate.

The Court docket confirmed that the mere reality Rosalba had superior most cancers and was closely medicated didn’t – by itself – set up lack of authorized capability. There have been well-established authorized exams and rebuttable presumptions that went into that dedication.

When these exams have been utilized to the details, the proof “amply supported” the conclusion that Rosalba 

… had the requisite testamentary capability, however her sickness and the consequences of her remedy and drugs, and was not below any affect however solely guided by her personal alert common sense when she made her March 1, 2017 will which was not surrounded by suspicious circumstances.

That “alert common sense” arose partly from the very fact Rosalba apparently didn’t financially belief her daughter Lucia, who had an extended historical past of drug and alcohol abuse. The connection between them was fraught and tumultuous. It was additionally no secret that in 2015, Rosalba had made an earlier model of her Will that likewise disinherited Lucia outright. That transfer had been prompted by the revelation that Lucia had taken – however not changed – a big sum of cash from Rosalba’s checking account simply as she was going via chemotherapy.

The Attraction Court docket checked out different details as nicely. These included the conflicting proof from each sibling “factions”, in addition to the testimony of unbiased witnesses, such because the lawyer who drafted Rosalba’s final Will for her after getting clear directions. 

When seen as an entire, the proof collectively led to the conclusion that Rosalba had full testamentary capability when she made the 2017 Will. It conveyed a “agency and clear” intent to exclude Lucia on account of her habit issues.  (And her brother Robert was excluded, the Court docket added, as a result of Rosalba trusted her different daughter Teresa to deal with him after her demise).  It had been correctly executed, and Rosalba knew and accredited its contents when she signed.  None of Lucia’s allegations of undue affect or “suspicious” circumstances have been made out right here. 

The court docket mentioned: 

Whereas it’s clear within the 2016-17 interval main as much as the Will that Rosalba had good days and dangerous days, there isn’t a proof that her well being, remedies, or ache medicine had any impact on her mentally on the materials occasions. In actual fact, the proof of [independent witnesses] establishes the other.

Full textual content of the attraction and trial selections:

Di Nunzio v. Di Nunzio, 2022 ONCA 889 (CanLII)

Di Nunzio v. Di Nunzio, 2021 ONSC 6689 (CanLII)