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Digest of the Week | Alteration of a Will by Codicil

Court considers validity of codicil

Kerr v. Metcalf | 2017 ONSC 4926 | Ontario Superior Court of Justice

Estates -- Revocation and alteration of will -- Alteration by codicil -- Effect on will -- General principles

Testator was survived by his common law spouse and his three adult children -- Testator left will executed in 2004, and on same day, he and his common law spouse signed cohabitation agreement -- In 2008, testator executed codicil to will and on same day, he and common law wife executed amendment to their cohabitation agreement, both making substantive changes to will and cohabitation agreement -- Two of testator’s children (applicants) brought application for relief including that declaration that 2004 will was last will and that cohabitation agreement signed that day remained valid and enforceable, and declaration that codicil and amendment to cohabitation agreement were null and void -- Application granted in part on other grounds -- There was no basis for finding either amendment to cohabitation agreement or codicil invalid -- Codicil met formal requirements -- Medical evidence and evidence of applicants did not support finding that at time he signed codicil and amendment, testator’s mental decline precluded his ability to validly sign those documents -- There was fair and legitimate expectation for what appeared to have been change in testator’s intentions -- When cohabitation agreement and will were initially prepared, testator was still relatively healthy but he was in decline by 2008, having undergone significant surgery and having received lung cancer diagnosis -- Testator changed his views in 2008 as he faced his own mortality and it was not unreasonable to accept that life-changing diagnosis may cause person to change plans, particularly considering that common law spouse was 11 years younger than testator -- Testator was concerned about ensuring that common law spouse would be able to maintain their lifestyle and that she would be able to either stay in their home or sell it to pay for alternate arrangement -- Whole of evidence strongly supported conclusion that it was testator who went to solicitor’s office to receive independent legal advice with respect to codicil and amendment -- Circumstances suggested that testator understood what he was signing and did choose, after receiving independent legal advice, to sign amendment to cohabitation agreement -- Circumstances surrounding testator’s signing of codicil and amendment to cohabitation agreement were not suspicious -- In context of 35 year relationship, likelihood that testator would predecease spouse, increased value of home, testator’s desire that spouse remain in home, and spouse’s financial situation, it could not be found that testator’s decision to transfer interest in home to spouse was product of improper or undue influence.
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