Defending a Will Backed by a Capacity Assessment

The situation

Paulo's father died in Stratford after several years of declining health, leaving a will signed about fourteen months before his death. The will named Paulo, a retail worker in his thirties, as estate trustee and left him roughly sixty percent of an estate worth about $200,000, made up mostly of a small paid-off house and modest investment savings. The remaining forty percent went to Paulo's brother Jomar, an administrative assistant. An earlier will, made several years before, had split everything evenly between the two brothers.

The unequal split was not a snap decision. Paulo's father had raised it with his family doctor and with the lawyer who eventually drafted the new will more than a year before he signed it, explaining that he wanted to reflect the care Paulo had provided in his final years. He was in his late seventies at the time, living with a chronic heart condition that made his family and his lawyer cautious about the will being challenged later — which is precisely why the capacity assessment existed in the first place.

Six weeks after their father's death, Jomar's lawyer sent Paulo a notice disputing the will. The claim was that their father had not had the mental capacity to make a valid will when he signed it — that his memory had already been failing, and that he could not have understood what he owned, who might reasonably expect to benefit, or the effect of cutting his share. If the challenge succeeded, the estate would fall back to the earlier will, or possibly to the rules that apply when there is no valid will at all, splitting everything evenly regardless of what their father had actually wanted at the end.

What the challenge required

In Ontario, a will only takes legal effect if the person who made it had testamentary capacity at the time — meaning they understood, in broad terms, what they owned, who had a reasonable claim on their estate, and what the will would do with it. Capacity is assessed at the moment the will is signed, not before or after. A person can be perfectly clear-headed on one day and confused the next, which is exactly why the timing of Jomar's evidence mattered so much.

Once a will challenge alleges incapacity and points to some evidence supporting that suspicion, the legal burden shifts. It is no longer enough for the estate trustee to simply produce a will that looks properly signed and witnessed. The estate has to affirmatively prove that the person understood what they were doing when they signed it. Jomar's lawyer had assembled real ammunition for that argument: a family doctor's chart note from around the same period describing memory lapses, and a pharmacy record showing medication changes consistent with early cognitive decline.

Ordinarily, this kind of evidence is difficult for an estate trustee to answer. Family members and even doctors' general notes rarely speak directly to the specific legal test — a chart note describing memory problems does not by itself say whether someone understood the nature of a will. Most defended capacity challenges turn into a costly battle of retrospective opinions, with each side's expert reconstructing capacity years after the fact from incomplete records. Paulo's case did not have to go that route, because of one document his father's original lawyer had arranged before the will was ever signed.

What we did

1. Located the capacity assessment referenced in the will file. The lawyer who had drafted the will years earlier had noted, in a memo kept with the signed original, that he had arranged for the father to be independently assessed by a physician for testamentary capacity shortly before the signing appointment, given his age and the size of the change from the prior will. We obtained a copy of that assessment, which concluded in plain terms that the father understood his assets, understood that he had two sons, and understood that the new will would leave them unequal shares.
2. Corroborated it with the drafting lawyer's own file notes. The file included the lawyer's contemporaneous notes from the signing meeting, describing a coherent conversation in which the father explained, in his own words, why he wanted to leave Paulo a larger share — Paulo had moved back to Stratford to help him after a hospital stay two years earlier, while Jomar lived out of town and visited rarely. Courts give real weight to a lawyer's notes taken at the time of signing, particularly when they record the testator's own reasoning rather than the lawyer's summary of it.
3. Addressed the medical records directly rather than avoiding them. We did not dispute that the family doctor's chart showed memory complaints, or that a medication had been adjusted. Instead, we obtained the full chart and pharmacy history for the surrounding two years and had it reviewed against the capacity assessment date. The changes described in the chart notes came about four months after the will was signed, and the medication adjustment was for a sleep disorder rather than a cognitive one. Timing carried the argument: evidence of decline after the will was signed does not establish incapacity at the moment of signing.
4. Prepared the estate trustee's own evidence of his father's conduct in the following year. Paulo gathered records showing his father had continued managing his own banking, renewed his driver's licence after a vision and cognitive screening, and lived independently for most of the year following the will, all of which supported that the assessed capacity had not been a brief window that quickly closed.
5. Disclosed the full picture voluntarily before litigation escalated. Rather than waiting for formal document exchange, we sent Jomar's lawyer the capacity assessment, the drafting lawyer's notes, and the corroborating chart timeline early, with an offer to resolve the dispute without a trial. Putting the strongest evidence on the table early, instead of holding it back as a courtroom surprise, is often the fastest way to end a weak challenge — a case built on a partial medical record tends to lose its momentum once the missing context is filled in.

The outcome

About five months after the initial notice, and before any trial date was set, Jomar's lawyer advised that the challenge would be withdrawn. The capacity assessment obtained before signing, paired with the drafting lawyer's contemporaneous notes and the timing gap between the will and the medical decline, left little for a court to weigh in Jomar's favour. The brothers reached a short settlement confirming the will as written, with each side responsible for their own legal costs incurred to that point — a modest expense set against an estate of roughly $200,000, and far less than a trial would have cost either of them.

The estate was distributed under the terms their father had chosen: roughly $120,000 to Paulo and roughly $80,000 to Jomar, reflecting the sixty-forty split in the will. Probate — the court process confirming a will's validity and an estate trustee's authority to act — had been paused while the challenge was outstanding and was granted shortly after the settlement, allowing Paulo to finish administering the estate within a few months.

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