{"id":6676,"date":"2019-09-16T08:42:49","date_gmt":"2019-09-16T08:42:49","guid":{"rendered":"http:\/\/www.niagaralaw.ca\/?p=6676"},"modified":"2023-04-11T15:41:25","modified_gmt":"2023-04-11T15:41:25","slug":"knowledge-and-testamentary-capacity","status":"publish","type":"post","link":"https:\/\/niagaralaw.ca\/knowledge-and-testamentary-capacity\/","title":{"rendered":"Knowledge and Testamentary Capacity"},"content":{"rendered":"\n
\"\"
What level of knowledge of your own property do you need in order to make a will?<\/figcaption><\/figure>\n\n\n\n

<\/p>\n\n\n\n

<\/p>\n\n\n\n

The recent decision of the Ontario Court of Appeal in Quaggiotto v. Quaggiotto<\/em> has provided a greater explanation of how the courts will treat a testator\u2019s knowledge of the extent of their assets when considering the issue of testamentary capacity.  <\/p>\n\n\n\n

In order to make a will, you must be found to have\ntestamentary capacity (the ability to make a will).  One of the components of that test requires\nthat the person making the will must \u201cunderstand the extent of the property of\nwhich he is disposing.\u201d  Since the\nlandmark case of Banks v. Goodfellow <\/em>in\n1870, the courts have not held that a person making a will must have precise or\neven a completely accurate knowledge of their property.  Rather, they must have an overall idea of the\ntype and value of the property that they are disposing of in their will.<\/p>\n\n\n\n

In Quaggiatto<\/em>, the\ndeceased Maria Quaggiotto had executed a will in 2011 that split her estate\nevenly between her two sons, Franco and Livio, and also named them as joint\nestate trustees.  A new will was executed\nin 2014.  The new will left small\nbequests to Franco and Livio\u2019s children, with Livio as the sole residual\nbeneficiary.  Livio was also the sole\nestate trustee under the 2014 will.<\/p>\n\n\n\n

Franco challenged the validity of the will, arguing that it\nwas improperly executed, that his mother lacked testamentary capacity, and that\nthere was undue influence exerted against her. \nWith respect to testamentary capacity, Franco argued that his mother\u2019s\nknowledge of the extent of her property did not meet the standard required by Banks<\/em>.<\/p>\n\n\n\n

The trial decision affirmed the validity of the 2014 will.  These findings were upheld by the Ontario\nCourt of Appeal, which went into great detail describing Maria\u2019s knowledge of\nher assets at the time she made her will and that her lawyers took detailed\nnotes throughout the entire process, which supported the idea that Maria had\ncapacity to make a new will in 2014.  The\ncourt of appeal cited Justice Laskin in Orfus\nEstate et al. v Samuel and Bessie Orfus Family Foundation et al. <\/em>2013 ONCA,\nwhere Justice Laskin wrote at paragraph 60 that \u201cA competent testator does not\nhave to know the precise makeup of her estate. \nShe only need know in a general way the extent and nature of her\nproperty.\u201d<\/p>\n\n\n\n

The Quaggiotto <\/em>decision\nis also a reminder to lawyers practicing in the field of wills and estates to\nkeep diligent notes and carefully review any estate documents with our clients\nto ensure that they understand and approve of the contents of the documents\nthey are signing.<\/p>\n\n\n\n

As we\u2019ve said before<\/a>,\nthe best way to ensure that your wishes for your estate are protected and\nrespected following your death is to meet with a lawyer to draft a valid will.<\/p>\n\n\n\n

At Daniel & Partners LLP, our dedicated and experienced\nestates team will work diligently to ensure that your estate planning needs are\nmet.  We offer a full range of services,\nfrom simple wills and powers of attorney to complex estate planning, trusts,\nand guardianship matters.<\/p>\n\n\n\n

Contact our office to arrange an initial consultation as\nsoon as possible to get our team started on your case.<\/p>\n\n\n\n

Post written by Karen Shedden, associate\nlawyer<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

The recent decision of the Ontario Court of Appeal in Quaggiotto v. Quaggiotto has provided a greater explanation of how the courts will treat a testator\u2019s knowledge of the extent of their assets when considering the issue of testamentary capacity.  In order to make a will, you must be found to have testamentary capacity (the […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,104],"tags":[33,71,34,72,103,78,48],"acf":[],"_links":{"self":[{"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/posts\/6676"}],"collection":[{"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/comments?post=6676"}],"version-history":[{"count":1,"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/posts\/6676\/revisions"}],"predecessor-version":[{"id":8140,"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/posts\/6676\/revisions\/8140"}],"wp:attachment":[{"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/media?parent=6676"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/categories?post=6676"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/niagaralaw.ca\/wp-json\/wp\/v2\/tags?post=6676"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}