A Capacity Assessment on File Couldn't Stop the Challenge

The situation

Oksana and Bohdan came to Treadstone Law about eight months after their father died in Aurora, at the point where the estate administration had stopped moving. Both were surgeons, both named as co-executors in their father's will, and both had already applied for the court certificate that confirms a will's validity and authorizes an executor to act. The certificate had been granted. What had not gone smoothly was their sister.

Their father's estate was substantial, worth roughly $4,000,000 once his home, investments and a small rental property were accounted for. His will, signed about three years before he died, divided the estate unevenly: 45 percent to Oksana, 45 percent to Bohdan, and 10 percent to their sister Marcia. An earlier will, made years before that, had split everything three ways equally. Marcia knew about both versions, and she was not willing to accept the second one without a fight.

She retained her own lawyer and served a notice challenging the will's validity, asking the court to set it aside in favour of the earlier, equal one. Her stated ground was that their father had lacked the mental capacity to understand what he was signing when he changed his will, and that Oksana and Bohdan had influenced him into it. Oksana and Bohdan strongly disputed both claims, but a challenge like this freezes an estate: executors cannot safely distribute assets while a court application is pending, because they could be personally on the hook if they hand out money that a later ruling says should have gone elsewhere.

What the file showed

To change a will validly, a person needs what the law calls testamentary capacity: the ability to understand, in general terms, what property they have, who might reasonably expect to benefit from it, and the effect of the document they are signing. Capacity is assessed at the time of signing, not before or after, and it does not require perfect health or a flawless memory. Someone can have early cognitive decline, or a serious physical illness, and still have full capacity to make a valid will on a good day.

Where a will departs from what a testator's earlier wishes suggested, or treats children unequally without an obvious reason, courts are more willing to look closely at how it came about. This is sometimes called a suspicious circumstance, and when one is present, the person defending the will can be asked to do more than simply produce a properly signed document — they may need to show, with evidence, that the testator knew and approved of its contents.

Fortunately for the estate, the lawyer who had prepared the 2023 will had taken a step that a lot of estate lawyers skip when a client seems perfectly capable: because the change reduced one child's share substantially, that lawyer arranged for a physician experienced in cognitive assessments to meet with their father shortly before the will was signed and provide a written opinion on his capacity. The report was detailed. It recorded that their father could describe his assets accurately, name his three children, explain in his own words why he wanted to leave Marcia less, and understand that his choice could be contested. The lawyer's own file notes, taken at the signing meeting, said much the same thing in less clinical language.

This did not make Marcia's challenge disappear. It meant the estate was not starting from a position of vulnerability. A contemporaneous, professional capacity opinion is difficult evidence to argue around, and it shifted the practical odds significantly in the estate's favour before a single day of court time was spent.

What we did

1. Reviewed the entire estate planning file, not just the will. We obtained the file from the lawyer who had prepared the 2023 will, including the capacity opinion, the retainer correspondence and the signing notes. Having the full paper trail, rather than just the signed document, was what made the evidence usable.
2. Advised Oksana and Bohdan on their duties as executors during the challenge. We explained that they needed to keep administering the estate carefully — paying debts, preserving assets, filing tax returns — while holding back final distributions, and that acting reasonably during the dispute mattered for how they would be viewed if it did reach a judge.
3. Responded to the challenge and set out the estate's position. We filed the estate's response in the Superior Court, laying out the capacity evidence and disputing the claim of influence, while making clear the estate was open to resolving the dispute without a full trial.
4. Prepared for and attended mediation. Mediation is a common and often practical step in Ontario estate litigation before a trial date is set. We used the strength of the capacity evidence as leverage in that process, while being realistic with Oksana and Bohdan about what a full trial would cost in time, legal fees paid from the estate, and the relationship between the siblings regardless of who technically won.
5. Negotiated a settlement rather than pushing for total vindication. Marcia's lawyer knew the capacity evidence was strong. Our team knew that even a strong case can lose at trial, and that trials in estate litigation routinely run past a year once scheduling, examinations and expert reports are factored in. We negotiated a revised split that gave Marcia more than the 2023 will provided, without reopening the whole estate to the equal three-way division she had originally sought.

The outcome

The case settled at mediation, roughly fourteen months after their father's death. Marcia agreed to withdraw her challenge in exchange for a larger share than the will had given her — 20 percent of the estate instead of 10 percent. Oksana and Bohdan's shares came down from 45 percent each to 40 percent each to make up the difference, meaning the extra amount Marcia received, about $400,000, came out of their combined share in equal $200,000 portions. On top of that, the estate paid roughly $150,000 in legal costs to bring the dispute to a close, an amount that reduced what all three siblings ultimately received, since it came off the top of the estate before any of the percentage splits were applied.

This is what a mitigated outcome looks like in estate litigation: the capacity assessment did exactly what it was supposed to do. It kept the estate out of a multi-day trial, kept a geriatric psychiatrist or physician out of a witness box being cross-examined about a man who could no longer speak for himself, and gave Oksana and Bohdan a strong enough position that they did not have to capitulate to Marcia's original demand for an equal split. But it did not make the challenge free. Legal costs, a delayed distribution of well over a year, and a settlement that gave Marcia twice her original share were all real costs of the dispute, borne by an estate that had done nothing wrong in how the will was prepared.

Oksana and Bohdan were disappointed the case hadn't simply been dismissed. What they came to understand, once the numbers were in front of them, was the counterfactual: without the capacity opinion on file, their father's estate would likely have faced a genuine risk of losing outright, along with a trial that could easily have cost several times what the settlement did, stretched over two or three years, and left the siblings unable to speak to each other by the end of it. The document their father's original lawyer had thought to arrange, three years before anyone imagined it would be needed, was the difference between a costly settlement and a family estate consumed by litigation.

What you can learn from this