Why Your Will Matters: Freedom of Testamentary Disposition Affirmed

In a recent decision by the Ontario Court of Appeal, Roe v. Roe, 2024 ONCA 179, significant legal issues surrounding testamentary capacity, insane delusions, and undue influence were thoroughly examined. This landmark ruling sheds light on the complexities of estate disputes and the legal principles governing them.

Background:

The case revolves around the Last Will and Testament of Beverly Grace Roe, who passed away in 2014 at the age of 90. Beverly’s will, dated August 24, 2005, excluded her son Robert Mark Roe (“Mark”) from being a beneficiary. Previously, Beverly’s wills divided her assets equally among her four sons. Mark contested the validity of the 2005 Will, alleging that Beverly lacked testamentary capacity and was unduly influenced by his brother, Randall Scott Roe (“Rick”). Beverly was in the early stages of Alzheimer’s disease, showing signs of memory and other cognitive defects, when she changed her will in 2005. She had lived with Rick, who allegedly had a “difficult personality”, most of Rick’s life. Beverly had lost her driver’s licence a few months before she changed her will. Mark had made some allegations against his brother that he was engaged in elder abuse involving their mother, even involving the police. Mark and his spouse even reached out to Beverly’s doctors about their concerns, and requesting that the doctor refer Beverly to counselling. It would appear that Beverly did not take kindly to the interference, and as a result cut Mark out of her will.

Analysis:

Insane Delusions:

The Court examined whether Beverly was operating under insane delusions when she disinherited Mark. The application judge acknowledged that there were some suspicious circumstances surrounding the execution of the 2005 Will but found no evidence that Beverly suffered from insane delusions. The lower court judge considered that the family tended to be “passionate” and looked and thought deeply about issues affecting them. The judge also found that there was some foundation for Beverly’s thoughts and beliefs. In that context, the judge found that while Beverly’s actions might have been a bit irrational, they were still grounded in some fact and were not based on insane delusions. The Court of Appeal agreed.

Undue Influence:

Mark alleged that Rick unduly influenced Beverly to change her will; Rick lived with Beverly most of his life and in fact drove her to the lawyer to have the will changed. The application judge looked at the entire relationship and found that “Beverly and Rick had a symbiotic relationship that seemed to work” and Beverly was able to manage Rick, despite his somewhat difficult personality. However, the Court found no evidence supporting the allegation of undue influence. The Court of Appeal affirmed the lower court’s ruling, which concluded that Beverly was not unduly influenced by Rick to cut Mark out of her will.

Understanding of Assets:

Lastly, the Court addressed Beverly’s understanding of her assets. It relied on expert testimony from geriatric psychiatrists who testified that Beverly had sufficient knowledge of her assets in order to be able to instruct her lawyer as to the disposition of those assets after her death. Beverly had brought a list of her assets to her appointment. While Mark made a technical legal argument about the role of the application judge as the finder of fact, the Court of Appeal dismissed that argument. The Court of Appeal affirmed its earlier decision in Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, in finding that “a competent testator does not have to know the precise make up of her estate, only in a general way the nature and extent of her property”.

Disposition:

The Court of Appeal dismissed the appeal, thereby affirming that the application judge was correct that Beverly had the necessary capacity, and was not suffering from undue influence or insane delusions when she decided to disinherit one of her 4 sons.

Conclusion:

Roe v. Roe provides clarity on testamentary capacity, insane delusions, and undue influence in estate matters. While this case did not expressly rule on freedom of testamentary disposition in Ontario, the fact that the Court of Appeal allowed Beverly to disinherit one of her children, in our opinion, does just that. Any person can do whatever they want with their assets after they die (there are exceptions to this and it is always best to consult your lawyer if you want to go down that road). Having said all of that, you can see from Roe v. Roe that using your will as a way to punish some or all of your family is a recipe for estate litigation. While you may feel that “I will be dead so it doesn’t matter”, your legacy can then become very public (lawsuits are almost always a matter of public record), your assets will be diminished (litigation is expensive and at least some of the costs will likely be paid from the estate assets), and time-consuming (Beverly died in 2014 and the matter is only now being resolved, 10 years after her death). We refer you back to our blog post about avoiding estate litigation.