Days before the February 2022 Russian invasion in Ukraine, Darcy Brockbank (“Darcy” or the “Estate”, respectively) travelled to Kiev. On February 25, 2022, Darcy died unexpectedly from a heart attack. He was survived by his mother, Josephine Brockbank (“Josephine”), and two brothers: Joel Brockbank (“Joel”) and Stuart Brockbank (“Stuart”).

On May 24, 2023, Joel received a certificate of appointment of estate trustee without a will. Approximately one year later, the Respondent and Darcy’s longtime friend, Scott Parkinson (“Scott”) produced a will purporting to be Darcy’s last will and testament dated January 10, 2022 (the “Will”). The Will was a detailed 14-page document that was created with estate planning software in December 2021. On January 10, 2022, Darcy executed the Will before two Notary Publics/Paralegals. He then retained an estates law firm to store the Will and left for Ukraine shortly thereafter. The Will specifically excluded Darcy’s family and instead, made specific bequests to certain beneficiaries and divided the residue of the Estate into 100 parts to be distributed to specific persons or charities. The Will also included an appendix which listed Darcy’s assets and the location of some of these assets.

On July 29, 2024, Joel and Josephine commenced an application to declare the Will invalid on the grounds that suspicious circumstances surrounded the execution of the Will, Darcy lacked testamentary capacity and that he did not know or approve of the contents of the Will. Josephine died after the application was commenced and as such, Joel and Stuart would inherit Josephine’s share of Darcy’s estate (if any). Joel brought a motion to obtain Darcy’s medical and counselling records on the basis that the evidence adduced suggested that Darcy may have been incapable of executing the Will.

Applicable Law

In Seepa v. Seepa 2017 ONSC 5368, the Court held that the onus is on the moving party to prove that they should be given tools, such as document discovery, before they are required to put their best foot forward in a will challenge. In other words, a will challenge is not an invitation to commence a fishing expedition into a deceased person’s personal affairs. Rather, the moving party must meet the minimum evidentiary threshold to merit the release of personal information, such as medical records. The Court is tasked with assessing whether the evidence, if accepted, would support the claim that a testator may have lacked testamentary capacity.

The Evidence

Joel heavily relied on Darcy’s trip to Kiev as evidence that he was not of sound mind when executing the Will. Before Darcy even arrived in Ukraine, there were already indications of conflict and the Canadian embassy in Kiev had already been shut down. However, there was no certainty that the conflict in Ukraine would escalate to an invasion and Darcy may have had a legitimate reason for his trip.

Darcy also experienced multiple mental and physical health issues. Darcy had been in hospitals all over the world for these ailments and took a mixture of over the counter, prescription and Asian medications. He also had a history of concussions and bipolar disorder. After the pandemic, Darcy began behaving erratically; he berated his father (which was highly uncharacteristic of him as they shared a close relationship), made violent threats and sent family members rambling emails and messages. There was evidence that Darcy took medications far beyond the recommended dosage and that he used more potent drugs, such as ketamine.

After the death of his father in December 2021, Darcy’s behaviour escalated. Joel claims that Darcy manipulated Josephine in order to take control of her finances and falsely accused his brothers of taking their mother’s assets. On February 15, 2022 (days before his death), Darcy completed a questionnaire for an online therapy service in which he stated that he was depression, anxious and experiencing suicidal ideation. On February 21, 2022, Joel received an email from Darcy which stated “I am so unhappy. I just want to find some freedom. Dad is dead, brothers fighting me for money.”

Joel also claimed that Darcy and Josephine had always shared a close relationship and it was highly uncharacteristic that Darcy disinherited her.

However, the Court noted that the Will contained specific gifts and did not distribute the Estate haphazardly. On the contrary, the Will was very detailed and included a comprehensive distribution scheme for the residue of the Estate. The Will even provided the email addresses of the beneficiaries for ease of contact. In December 2021, Darcy also asked Scott whether he would be the executor of the Estate and discussed some of the gifts he intended to make. Furthermore, Darcy retaining a law firm to store the Will also suggests that he was of sound mind and understood the importance of safekeeping the Will.

Scott also highlighted that Joel omitted relevant correspondence, specifically a January 26, 2022 email from Darcy to Joel and Josephine in which Darcy confirmed that he retained an estates law firm to represent him in “this nonsense that you and Stuart launched . . . preventing mom from completing her tasks as executor”. In this email, Darcy also disapproved of his brothers’ behaviour and their alleged misappropriation of their father’s estate.

Regarding Josephine’s disinheritance, the respondents submitted this was not unusual. When Darcy executed the Will, Josephine was 88 years old at the time, living in long term care, had adequate assets for her care in her bank accounts and was overall financially secure.

Joel’s conduct following Darcy’s death also raised suspicion on whether he truly believed Darcy died intestate without a will. After the estate law firm learned of Darcy’s death, they attempted to locate Scott as he was named as estate trustee. The firm contacted Stuart who provided an address in Belle River. However, this was not Scott’s correct address and indeed, was a property owed by Joel.

Decision

The Court found that Joel misunderstood the test for testamentary capacity. Testamentary capacity requires the testator to understand the nature of a will and its impact on their property and beneficiaries. While there was ample evidence that Darcy suffered from poor physical and mental health, testamentary capacity does not require a clean bill of health.

The detailed nature of the Will strongly suggested that Darcy had testamentary capacity: he understood his assets and clearly ascertained who he wanted to benefit or exclude from his Estate. The Court accepted that Darcy knew Josephine was financially secure and that if Josephine was a beneficiary of his Estate, his brothers may have access to his assets upon Josephine’s death.

Darcy’s intentions for disinheriting his brothers were clear. He believed that his brother had misappropriated Josephine’s assets and their father’s estate. He was angry with his brothers and did not want them to benefit from his Estate. Considering the family conflict at the time, the circumstances surrounding the execution of the Will were not suspicious.

There was no evidence before the Court on how assess the impact, if any, medications or ketamine would have on Darcy’s testamentary capacity. The steps taken by Darcy to draft a lengthy Will, get it notarized and contact an estates law firm was a process and not simply an irrational decision fuelled by substance abuse.

Finally, the Court cautioned against the presumption that drug use (whether prescription or otherwise) and mental health issues automatically render someone incapable of executing a valid will. Such presumptions are dangerous and perpetuate impermissible stereotypes.

The Court found that intrusion into Darcy’s private medical records was not warranted as Joel had not met the minimal evidentiary threshold.

Takeaways

Brockbank v Parkinson, 2026 ONSC 1761 serves as a reminder that testamentary capacity does not require perfection. Testators can be capable of executing a will even when their surrounding circumstances are complicated.