Dying Mother DisInherits 2 of three Children from Will

Dying Mother Confirmed as Succesful When Eradicating Two of Three Children in Will

A dying, cancer-ridden mom determined to chop two of her three grown kids out of her Will. Ought to the court docket overturn it after her loss of life?

Not in keeping with the Ontario Court docket of Attraction in a latest case known as Di Nunzio v. Di Nunzio.  

The information concerned a girl named Rosalba, who died at age 80 leaving what turned out to be a hotly-contested Will. Though she had three now-adult kids – Robert, Lucia, and Teresa – Rosalba’s 2017 Will expressly disinherited the primary two of them, leaving daughter Teresa to be the only real beneficiary and property trustee.

Not surprisingly, the disinherited offspring felt aggrieved. One in every of them, Lucia, introduced a court docket software: She objected that her mom merely didn’t have authorized capability when the Will was made, which was about 16 months earlier than her loss of life. Lucia pointed to Rosalba’s spreading most cancers and declining well being, her continual ache, and the results of her remedy and heavy remedy. Her brother Robert was additionally capable of testify that some days his mom Rosalba’s ache was so extreme that she couldn’t even interact in dialog.  Lucia claimed her gravely sick mom had been unduly influenced, and that the circumstances have been “suspicious”. 

On this foundation, Lucia requested the court docket to have her sister Teresa’s Certificates of Appointment as Executrix put aside, and to have Rosalba’s Might be declared invalid and unenforceable.

At trial, the decide declined to make such an order. Lucia appealed, however the Court docket of Attraction upheld the sooner ruling. Rosalba’s Will was declared legitimate.

The Court docket confirmed that the mere truth Rosalba had superior most cancers and was closely medicated didn’t – by itself – set up lack of authorized capability. There have been well-established authorized assessments and rebuttable presumptions that went into that dedication.

When these assessments have been utilized to the information, the proof “amply supported” the conclusion that Rosalba 

… had the requisite testamentary capability, however her sickness and the results of her remedy and drugs, and was not underneath any affect however solely guided by her personal alert common sense when she made her March 1, 2017 will which was not surrounded by suspicious circumstances.

That “alert common sense” arose partly from the very fact Rosalba apparently didn’t financially belief her daughter Lucia, who had a protracted historical past of drug and alcohol abuse. The connection between them was fraught and tumultuous. It was additionally no secret that in 2015, Rosalba had made an earlier model of her Will that likewise disinherited Lucia outright. That transfer had been prompted by the revelation that Lucia had taken – however not changed – a big sum of cash from Rosalba’s checking account simply as she was going by chemotherapy.

The Attraction Court docket checked out different information as nicely. These included the conflicting proof from each sibling “factions”, in addition to the testimony of unbiased witnesses, such because the lawyer who drafted Rosalba’s final Will for her after getting clear directions. 

When seen as a complete, the proof collectively led to the conclusion that Rosalba had full testamentary capability when she made the 2017 Will. It conveyed a “agency and clear” intent to exclude Lucia on account of her habit issues.  (And her brother Robert was excluded, the Court docket added, as a result of Rosalba trusted her different daughter Teresa to care for him after her loss of life).  It had been correctly executed, and Rosalba knew and permitted its contents when she signed.  None of Lucia’s allegations of undue affect or “suspicious” circumstances have been made out right here. 

The court docket mentioned: 

Whereas it’s clear within the 2016-17 interval main as much as the Will that Rosalba had good days and unhealthy days, there isn’t any proof that her well being, remedies, or ache remedy had any impact on her mentally on the materials instances. Actually, the proof of [independent witnesses] establishes the other.

Full textual content of the attraction and trial selections:

Di Nunzio v. Di Nunzio, 2022 ONCA 889 (CanLII)

Di Nunzio v. Di Nunzio, 2021 ONSC 6689 (CanLII)