Di Nunzio vs Di Nunzio reminds us of the standard of evidence required in a will challenge.
The testator made a new will in 2017 (the “2017 Will’). The 2017 Will was made while the testator was in palliative care and she retained a new lawyer to assist her to make the will. In the 2017 Will, she appoints her daughter Teresa (her primary caregiver) as her estate trustee and sole beneficiary. The testator disinherited her other two children. The disinherited daughter, Lucia, challenged the validity of the 2017 Will on the grounds that her mother lacked testamentary capacity, the 2017 Will was made under suspicious circumstances, and her mother was unduly influenced by Teresa to make a new will. The testator’s son, who was also disinherited, did not challenge the will and supported Teresa in upholding the 2017 Will.
The court dismissed Lucia’s application and awarded partial indemnity costs to Teresa.
The decision highlights the following for me:
- Having significant health issues and taking strong medication is not sufficient on its own to prove incapacity;
- Appointing your primary caregiver as your estate trustee and sole beneficiary is not suspicious or evidence of undue influence;
- The evidence of independent parties, in this case a real estate agent and the witness to the 2017 Will, carries considerable weight;
- The evidence of the drafting solicitor (their impressions, notes, and assessment of the testator) is valuable; and
- Will challenges are expensive.
Often a client will ask me, why bother retaining a lawyer to make a will, if someone can object to the will. I often respond that an estate solicitor can be your best witness, if your will is challenged.
In this situation, the period in question predates Covid 19 protocols. The testator, who was elderly and medically frail, would not have met in person with a real estate agent or happened to have a family friend visiting the house. She may have not even met her solicitor in person. Given Lucia’s allegations about the authenticity of the testator’s signature on a number of documents, the in person confirmation of signing the documents by the independent witnesses favoured upholding the 2017 Will.