All About Estates

Testamentary Capacity and Expert Reports

As many well know, issues relating to testamentary capacity are often at the forefront of estate litigation cases and in particular, will challenges. Drafting solicitors may opt to obtain a contemporaneous capacity assessment before their clients execute a last will and testament; this may be the case where the testator is older or has cognitive limitations, and/or when there are known family conflicts and an anticipated will challenge. In addition, a deceased’s person’s medical records may be produced in the context of a dispute, so the parties can attempt to draw conclusions regarding the deceased’s capacity when the challenged will was executed. Parties may also go further by retaining an expert to review the medical records and conduct a retrospective capacity assessment.

The recent Court of Appeal (“ONCA”) case of Leonard v. Zychowicz provides guidance relating to the laws regarding testamentary capacity and will challenges, as well as the use of medical expert reports.

By way of background, the case involved a dispute between two cousins relating to the estate of their aunt, Helen Polomock (the “Deceased”). The Deceased died on April 4, 2011 and her last will and testament was executed on October 23, 2007 (the “Will”). The Will provided, in part, that the respondent was the sole estate trustee and beneficiary of the estate. The applicant/appellant challenged the validity of the Will on the grounds that there were suspicious circumstances surrounding its execution, that the Deceased lacked testamentary capacity, as well as knowledge and approval of the Will’s contents, and that the Deceased was subject to undue influence around the time she signed the Will. The applicant had been named as sole beneficiary and estate trustee under the Deceased’s prior 2002 will.

The application was dismissed and the applicant appealed. On appeal, it was submitted, among other things, that the application judge erred in relying on the presumption of capacity to make a determination of capacity in the absence of material evidence. The appeal was dismissed, as discussed below.

The ONCA confirmed that the application judge correctly identified the Banks v. Goodfellow test with respect to testamentary capacity and considered its elements. Indeed, the application judge was prepared to accept that the appellant had adduced “some evidence of suspicious circumstances with respect to capacity such that [the respondent] has the onus of proving testamentary capacity.” However, having considered the evidence on capacity, including the expert evidence, the application judge found that the respondent had discharged her onus and that the Will was valid. In particular, the application judge largely rejected the evidence of the appellant’s expert. He found that the expert’s evidence had been “tainted” by a summary of facts prepared by appellant’s counsel “with advocacy in mind”.

Accordingly, the application judge preferred the evidence of the respondent’s expert in making its decision. The ONCA further held that a judge’s findings of fact based on the acceptance of expert evidence and their preference of the evidence of one expert over another is entitled to deference, and should not be interfered with in the absence of a palpable and overriding error in the assessment of the evidence. The appellant demonstrated no such error.

Moreover, the ONCA found that there was ample evidence before the application judge to support the Deceased’s testamentary capacity and the absence of undue influence. This evidence includes, but is not limited to: evidence of the Deceased’s half-brother, who described the Deceased as independent, capable of living alone and capable of making her own property and personal care decisions; evidence of the drafting solicitor, who had a long-time relationship with the Deceased and who did not recall or note any concerns about testamentary capacity; and the absence of any evidence, particularly the extensive medical record produced in the litigation, that the Deceased lacked capacity.

This case lends insight into how the courts will treat medical expert reports and the information provided to experts by counsel, and reminds us that the court will look at the totality of evidence when dealing with issues relating to a testator’s capacity.

About Joanna Lindenberg
Joanna is an experienced estates, trusts, and capacity litigator at de VRIES LITIGATION LLP. Joanna obtained her law degree from the Shulich School of Law at Dalhousie University after completing a Bachelor of Arts degree at McGill University. Following her call to the Ontario Bar in June 2011, Joanna obtained a Masters of Law at the University of California Los Angeles (UCLA), specializing in international and comparative law. Joanna's current practice focuses on, in part, will challenges, dependant’s support, capacity, and power of attorney disputes. More of Joanna's blogs can be found at


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.