Executor’s Burden to Prove Codicil’s Validity

The Ontario Court of Appeal recently reaffirmed in Orfus Estate v. The Samuel and Bessie OrfusFamily Foundation “that when suspicious circumstances exist around a willor codicil, the burden is on the executors to prove that the testator knew andapproved of its contents.”

In Orfus Estate,Sharon, the estranged daughter of Bessie, objected to a codicil cutting her outof Bessie’s $20 million estate.  Hersister, Elaine, brought a motion for summary judgment to dismiss the claim,which was granted.  Sharon appealedclaiming the judge erred in finding her mother knew and approved of thecodicil’s contents.

As executor, Elaine met her burden of proving Bessie knewthe contents of the codicil, approved of the contents, and had capacity.  In proving capacity, Elaine relied on asuccessful visit to a family doctor two weeks before the codicil’s executionand the fact that Sharon never objected to Bessie’s capacity in previousunrelated litigation. 

Toronto trusts and estates lawyer Adam Capelli notes thatthe “’time and task specific’ approach to capacity was ignored,” as evidence from the attending witnesses of the codicil execution was not used, because thewitnesses couldn’t recall the meeting.

See Burden on Executors When It Comes to ProvingCodicil’s Validity, Advocate Daily, July 9, 2013.