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Appeal Court Affirms: Dying Mom Was Capable When Disinheriting Two of Three Kids in Will

Written by Russell Alexander / (905) 655-6335

Dying Mom Confirmed as Capable When Removing Two of Three Kids in Will

A dying, cancer-ridden mother decided to cut two of her three grown children out of her Will. Should the court overturn it after her death?

Not according to the Ontario Court of Appeal in a recent case called Di Nunzio v. Di Nunzio.  

The facts involved a woman named Rosalba, who died at age 80 leaving what turned out to be a hotly-contested Will. Although she had three now-adult children – Robert, Lucia, and Teresa – Rosalba’s 2017 Will expressly disinherited the first two of them, leaving daughter Teresa to be the sole beneficiary and estate trustee.

Not surprisingly, the disinherited offspring felt aggrieved. One of them, Lucia, brought a court application: She objected that her mother simply did not have legal capacity when the Will was made, which was about 16 months before her death. Lucia pointed to Rosalba’s spreading cancer and declining health, her chronic pain, and the effects of her treatment and heavy medication. Her brother Robert was also able to testify that some days his mother Rosalba’s pain was so severe that she could not even engage in conversation.  Lucia claimed her gravely ill mother had been unduly influenced, and that the circumstances were “suspicious”. 

On this basis, Lucia asked the court to have her sister Teresa’s Certificate of Appointment as Executrix set aside, and to have Rosalba’s Will be declared invalid and unenforceable.

At trial, the judge declined to make such an order. Lucia appealed, but the Court of Appeal upheld the earlier ruling. Rosalba’s Will was declared valid.

The Court confirmed that the mere fact Rosalba had advanced cancer and was heavily medicated did not – by itself – establish lack of legal capacity. There were well-established legal tests and rebuttable presumptions that went into that determination.

When those tests were applied to the facts, the evidence “amply supported” the conclusion that Rosalba 

… had the requisite testamentary capacity, notwithstanding her illness and the effects of her treatment and medication, and was not under any influence but only guided by her own alert good judgment when she made her March 1, 2017 will which was not surrounded by suspicious circumstances.

That “alert good judgment” arose partly from the fact Rosalba apparently did not financially trust her daughter Lucia, who had a long history of drug and alcohol abuse. The relationship between them was fraught and tumultuous. It was also no secret that in 2015, Rosalba had made an earlier version of her Will that likewise disinherited Lucia outright. That move had been prompted by the revelation that Lucia had taken – but not replaced – a large sum of money from Rosalba’s bank account just as she was going through chemotherapy.

The Appeal Court looked at other facts as well. These included the conflicting evidence from both sibling “factions”, as well as the testimony of independent witnesses, such as the lawyer who drafted Rosalba’s last Will for her after getting clear instructions. 

When viewed as a whole, the evidence collectively led to the conclusion that Rosalba had full testamentary capacity when she made the 2017 Will. It conveyed a “firm and clear” intent to exclude Lucia on account of her addiction problems.  (And her brother Robert was excluded, the Court added, because Rosalba trusted her other daughter Teresa to take care of him after her death).  It had been properly executed, and Rosalba knew and approved its contents when she signed.  None of Lucia’s allegations of undue influence or “suspicious” circumstances were made out here. 

The court said: 

While it is clear in the 2016-17 period leading up to the Will that Rosalba had good days and bad days, there is no evidence that her health, treatments, or pain medication had any effect on her mentally at the material times. In fact, the evidence of [independent witnesses] establishes the opposite.

Full text of the appeal and trial decisions:

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

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

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.