Weilers LLP

Is That Will Valid?

Is That Will Valid?

May 9, 2024

By Brian Babcock 

In order to be valid, a will must be made while the person making it (the “testator”) has mental capacity to make a will.


A recent Ontario Court of Appeal decision nicely collects and summarizes examples of the indications that a court will look at in determining capacity.


In Shannon v. Hrabovsky, the testator made a will in 2007 that replaced a 2006 will. There were significant differences in the wills, apparently due to the testator having had a falling out with his daughter.

The daughter questioned whether the testator had capacity at the time of the 2007 will.

The initial burden of proof was on the daughter to show “suspicious circumstances” surrounding the preparation and signing of the 2017 will.

In this case, the following were considered indications of suspicious circumstances:

  • The reasons the testator was angry with his daughter exited at the time of the 2006 will, so logically were no reason for the changes in 2007;
  • There was no other known reason for the changes in the will;
  • The 2007 will was “unusually spiteful”;
  • A 2005 Demand Letter showed the testator’s state of mind (being angry with his daughter) before the 2006 letter;
  • Shortly after signing the 2007 will, the testator phoned his daughter and said he had signed a document but was not aware what it said;
  • In 2008, the testator gave the deed to his house to his daughter to “protect her entitlement to the Home”.

Once suspicious circumstances are shown, the persons saying the will is valid had the onus to show testamentary capacity.

There was medical evidence, after the 2006 will but before the 2007 will, that the testator had experienced an episode of dementia. This included evidence from a geriatric specialist doctor and medical records.

In addition:

The Court of Appeal , as usual, was not prepared to second guess the application judge on findings of fact.

The 2007 will was not valid, and the 2006 will was admitted to probate.


  • Once suspicious circumstances are shown, validity is hard to prove;
  • Suspicious circumstances do not require evidence of undue influence, the facts simply must show that the will might not show the testator’s true intention;
  • Documenting the reasons for changes in the will is a starting point;
  • Documenting reasons why the lawyer concludes the testator has capacity is important; and
  • Evidence from caregivers, friends and neighbours may be used to support medical evidence.



The wills and estates lawyers at Weilers LLP are knowledgeable and trained to spot suspicious circumstances, to avoid drawing wills in suspicious circumstances, and to document capacity where doubt may exist.

The litigation team at Weilers LLP currently has a strong focus on estate litigation, so if there is a dispute, our experience and current knowledge is valuable.

Whether you need a will, want to dispute a will, or need to defend the validity of a will, give us a call. We might be the right lawyers for you.