Gilmore J.’s decision to strike an objection in Dessisa and Wolde v Demisie serves as a caution to litigants that merely alleging testamentary incapacity may not be enough to block or significantly delay probate. Even where evidence is difficult to obtain due to a strained or nonexistent relationship between the deceased and the objecting party, it may be important to promptly source relevant evidence that can support the alleged incapacity, such that the objection is not be deemed frivolous or vexatious.
Dessisa was the nephew of Kefyalew Mandefrot (“the Deceased”). Demisie was the Deceased’s former common-law spouse. The Deceased executed a will in 2016 that had appointed Demisie as his Estate Trustee, and divided his estate equally between Demisie and his sister.
Demisie’s relationship with the deceased broke down in 2017. After they separated, the Deceased executed a new will that named Dessisa as the sole beneficiary of his estate, with a gift over to a family friend named Wolde. Dessisa and Wolde were named co-Estate Trustees. The Deceased also executed Powers of Attorney that named Dessisa and Wolde as his co-Attorneys for Property, and Dessisa as his Attorney for Personal Care, with Wolde as alternate.
The Deceased and Demisie executed Minutes of Settlement to resolve the issues between them in 2018. Under the Minutes of Settlement:
…Demisie released her right to receive spousal support, released her right to make any trust claims against the deceased, agreed to buy out his interest in [their house] for $253,000 and released her right to receive any proceeds from the deceased’s estate, amongst other things.
After the Deceased’s death, Dessisa applied for probate. Demisie objected, alleging incapacity and/or undue influence.
Rule 25.11 of the Rules of Civil Procedure provides that “the court may strike out all or part of a pleading, with or without leave to amend, on the ground that the pleading or other document,
- May prejudice or delay the fair trial of the action;
- Is scandalous, frivolous or vexatious; or
- Is an abuse of process of the court.
Gilmore J., found “no evidence to support that the deceased lacked capacity at the relevant times,” and struck out the notice of objection on the grounds that it was frivolous and vexatious.
Dessisa provided evidence from various witnesses who had interacted with the Deceased, including the Deceased’s lawyer, a social worker, and a longtime friend. All of this evidence indicated that, although the Deceased had been weakened by illness, he had been capable of making all of the decisions at issue.
On the other hand, Demisie’s evidence of the Deceased’s incapacity consisted of “bald allegations not supported or corroborated by any other evidence.” Gilmore J. noted that:
After January 22, 2017 Demisie had no further contact with the deceased. She is unable to provide any of her own evidence with respect to the circumstances surrounding the signing of the Will, Powers of Attorney, transfer of [the house] or the signing of the Family Law Application or Minutes. The only evidence the court has is that provided by the Applicants.
Demisie also unsuccessfully challenged the validity of the Minutes of Settlement, which Dessisa had signed for the Deceased under a Power of Attorney. Gilmore J., further noted that both parties to the Minutes had been represented by counsel, and accepted Dessisa’s evidence that he had signed them only after the Deceased’s lawyer had obtained clear instructions from the Deceased. Under the valid Minutes, Demisie had waived any claim to the Deceased’s estate. This consideration was a factor given weight in this decision.
 2020 ONSC 641