All About Estates

An Intriguing Will Challenge

In Koster v. Koster, the Deceased’s nieces and nephews challenged his last will on the grounds of undue influence. There is nothing unusual about a will challenge in these circumstances, the Deceased was a very wealthy man who changed his will in the twilight years of his life. What was unusual is that the nieces and nephews benefit under the Deceased’s last will that they are challenging. If they are successful, then they will receive nothing (and are well aware of that fact).

The Deceased died almost 4 years ago at the age of 94. He had been married to his first wife for over six decades. While the Deceased had no children with his first wife, he fathered a child before this marriage (although it is not known where this offspring is or if she is even still alive). Additionally, the Deceased had a son in 1966 – the product of an affair with a teenager named Elizabeth 17 years his junior.

After the Deceased’s first wife died, Elizabeth re-entered the picture. The Deceased and Elizabeth moved in together. The Deceased made two wills during this time, none of them benefiting his children. Instead, the vast majority of the estate was left to his nieces and nephews with a share to Elizabeth.

The Deceased was scheduled for heart surgery on February 10, 2011. On February 7, 2011, he married Elizabeth in a civil ceremony at city hall. Family and friends were not informed ahead of time of the marriage. On February 8, 2011, the Deceased asked his lawyer if it was true that his marriage voided his existing will. After being advised that it did, the Deceased gave instructions to make a new will giving his entire estate to Elizabeth. The Deceased’s lawyer, quite wisely, asked for a capacity assessment. After the Deceased was found capable (albeit without a written report), the Deceased’s lawyer drafted a new will incorporating the Deceased’s instructions.

The Deceased would make four wills in the period from February 17, 2011 to his death. His last secondary will left each niece and nephew $20,000.00, with the balance of his estate going to his son with a life interest to Elizabeth.

The nieces and nephews, who had previously had a close relationship with the Deceased, felt that Elizabeth had cloistered him away from them (Elizabeth’s evidence was that this lack of contact was the nieces’ and nephews’ own doing).

The nieces and nephews alleged that the Deceased steadfastly maintained that he would not marry Elizabeth. The actual marriage was kept secret from them. They believed the last four wills made by the Deceased were the product of undue influence by the “extremely forceful” Elizabeth.

The application commenced by five of the nieces and nephews did not challenge the Deceased’s marriage to Elizabeth – only the four wills made after the marriage. Elizabeth moved for summary judgment. The applicants are aware that if they are successful they will inherit nothing (as the estate will pass on intestacy to Elizabeth and the Deceased’s children).

Extensive affidavit material was filed on both sides. Justice Nightingale found that it was not appropriate to grant summary judgment on this matter due to the extensive conflict between the written evidence. His Honour believed it was necessary to hear the oral evidence of the parties and the witnesses. Justice Nightingale noted that he had the authority under the Rules to hear oral evidence. However, in his Honour’s view, there would be no significant saving of time or expense by exercising this option as opposed to scheduling a quick trial.

As such, Justice Nightingale scheduled a trial for either May or June (depending on the parties’ availability). His Honour will not be conducting this trial, but remains seized to give procedural directions to ensure that the matter proceeded expeditiously.

People are entitled to have their day in court. However, the applicants will lose their financial interest in the estate if they are successful at trial. Hopefully, this matter will be resolved before the parties incur additional legal fees and scarce judicial resources are consumed in a trial.

If this matter does go to trial, will the applicants’ forcing a trial despite their lack of a pecuniary interest have cost consequences? Or will the court accept that court resources can be used to litigate issues out of principle? We may soon have an answer.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email:


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