The Applicant (the Deceased’s son) brought an application seeking to invalidate the Deceased’s 2023 Will, submit the Deceased’s 2022 Will for probate, and seek the return of the Deceased’s $95,000 gift to his nephew.

The Deceased executed wills on March 16, 2022 and November 22, 2023. In his 2022 Will, the Applicant is named as the estate trustee, the Deceased gifts his home and its contents to the Applicant and names the Applicant, Respondent Richard (the Deceased’s son) and Respondent Grant (the Deceased’s Nephew) as the residuary beneficiaries.  The original copy of the 2022 Will could not be located.

In his 2023 Will, the Deceased names Respondent Grant as his estate trustee,  he does not gift the property to the Applicant and names the Applicant and the two Respondents as his residuary beneficiaries. In October 2023, the Deceased also gave Respondent Grant $95,000 from an account that was held jointly with the Applicant. The Applicant’s evidence was that in 2022, the Deceased told him that the joint account was to go to the Applicant.

The Applicant sought to validate the 2022 Will arguing that by 2023, his father’s advanced dementia made it impossible for him to make his 2023 Will due to lack of testamentary capacity and lack of knowledge and approval of the 2023 Will’s contents. He also sought the return of the $95,000 gift his father made to Respondent Grant due to lack of capacity.

Neither Respondent filed a notice of appearance or participated in the hearing. Respondent Richard was supportive of the Applicant’s appointment as estate trustee and Respondent Grant indicated that he did not oppose the relief sought by the Applicant.

The court agreed that the medical evidence indicated that by November 2023, the Deceased lacked capacity to make a new Will and the $95,000 gift.  A few months before he made his new Will, the Deceased’s medical notes reference his “marked decline” and progression from mild cognitive impairment to advanced dementia.

The court found the 2023 Will was invalid, the 2022 Will could be submitted for probate despite the lack of the original copy, and that Respondent Grant was to repay the $95,000 gift to the Applicant.

Despite the success of the application, the Applicant was not fully indemnified by the estate.  The court awarded a blended cost award from the estate with the Applicant personally responsible for some of his costs.  The court noted that the Applicant personally benefited from the application as he receives additional assets under the 2022 Will and the $95,000.00 gift repayment only benefited him.

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