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“Death-Bed Will” Remains a Will Until Proven Other

Case Comment: Krolewski v. Moniz, 2020 http://canlii.ca/t/j4fvf

Background Facts

In a January, 2020 judgement, the Ontario Superior Court of Justice confirmed the validity of a Will that was executed by the testator just weeks prior to his death.

Eduardo Medeiros was diagnosed with terminal lung cancer on March 13, 2015 and he died on June 30, 2015. Shortly before his passing, Mr. Medeiros executed a new Will on June 8, 2015 (the “2015 Will”), which named his common-law spouse of 18 years, Maria Moniz, as the estate trustee, and divided his Estate between Ms. Moniz and Mr. Medeiros’ adult children (the “Applicants” or the “Children”) from his first marriage.

Both Mr. Medeiros and Ms. Moniz had children of their own from prior marriages, and they had no children together.

Mr. Medeiros had a prior Will that predated the 2015 Will, which he had executed on November 15, 2004 (the “2004 Will”), in which he named his daughter and Ms. Moniz as joint estate trustees and gifted the vast majority of his Estate to the Applicants. Ms. Moniz was essentially disinherited under the 2004 Will.

The Applicants brought an application seeking to have the 2015 Will declared invalid, in favour of the 2004 Will, on the grounds that Mr. Medeiros did not have the requisite testamentary capacity or was unduly influenced by Ms. Moniz when he executed the 2015 Will. The Applicants asserted that both Mr. Medeiros and Ms. Moniz intended for their adult children to benefit from their respective estates, and that this intention was reflected accurately in the 2004 Will and not in the 2015 Will.

Ms. Moniz’ position was that Mr. Medeiros, her common-law spouse of 18 years, wanted to see that Ms. Moniz was properly looked after upon his passing, and that this intention was accurately reflected in the 2015 Will, which was executed when Mr. Medeiros had the requisite capacity, despite the fact that it was signed just 3 weeks before he died.

The Honourable Justice Shaw, in his reasons, sided with Ms. Moniz and upheld the validity of the 2015 Will.

The Applicant Children sought an order that the matter be converted to a trial because, in their view, oral evidence was required and there were credibility issues that could only be addressed by way of a trial. Ms. Moniz’ position was that the matters at issue in relation to the 2015 Will could all be resolved by way of an application, and resolved based on the affidavits and documentary evidence that were filed with the court and the transcripts of cross-examinations that had already taken place which were before the Court.

Justice Shaw, citing Justice Myers’ ruling in Rubner v. Bistricer, 2018 ONSC 1934, noted that where filed materials permit the Court to resolve factual disputes in issue, the Could should deal with those issues in a summary fashion and without a trial if possible.

In this case, voluminous affidavits and reports had been filed, cross-examinations had taken place and the transcripts of the cross-examinations were also filed with the Court. And the Court further noted that most of the material facts were not in dispute between the parties. Therefore, in this case, the Court ruled that it was appropriate to resolve the proceedings in a summary fashion based on the documentary affidavit and cross-examination evidence that had been filed.

The Court ruled that it was in the interests of justice to have the matter resolved expeditiously, and in a cost-effective matter, without the unnecessary use of court or party resources.

Will Challenge

Ms. Moniz’ evidence was that, after Mr. Medeiros was diagnosed with cancer, he became concerned about whether his affairs and estate plan were in order, and particularly concerned about ensuring that Ms. Moniz was adequately provided for when he died. He then executed the 2015 Will in order to ensure that Ms. Moniz would be taken care of.

The Applicants contended that, after their father was diagnosed, he had told them that his estate plan would remain the same as reflected in the 2004 Will, and they did not know about the 2015 Will until after Mr. Medeiros had died. The Applicants argued that Mr. Medeiros was too sick to have the capacity to execute the 2015 Will and that he did so under the influence of Ms. Moniz.

The Lawyer’s Evidence

Three weeks before Mr. Medeiros passed away, on June 8, 2015, Mr. Medeiros and Ms. Moniz met with a lawyer to draft and execute the 2015 Will. This was the same lawyer who had drafted Mr. Medeiros’ 2004 Will.

During that meeting, the drafting lawyer asked questions of Mr. Medeiros to determine his capacity, and he asked Ms. Moniz to leave the room so that the lawyer could meet privately with Mr. Medeiros.

The lawyer’s evidence was that, while the lawyer was not a medical professional, he concluded at that time that Mr. Medeiros had the capacity to instruct and execute the 2015 Will, and that it was the lawyer’s view that Mr. Medeiros had provided instructions for the 2015 Will free of undue influence from Ms. Moniz or otherwise.

The Capacity Assessment

The Applicants retained a psychologist to provide an expert opinion letter regarding whether Mr. Medeiros had capacity to make the 2015 Will. A retrospective capacity assessment was done based on Mr. Medeiros’ medical records following his cancer diagnosis.

The psychologist’s report concluded that Mr. Medeiros was in a “very vulnerable physical and mental condition” when the 2015 Will was signed, due to the pain he was experiencing and medication he was taking relating to his cancer diagnosis. However, there was insufficient information to conclude that Mr. Medeiros lacked capacity on the day the 2015 Will was executed, although given his pain level, anxiety level, and opioid medication it was “unlikely that Mr. Medeiros was fully aware” of the 2015 Will or its implications when he signed it.

Importantly, the psychologist (in advance of preparing the report) was told that the 2015 Will did not include the Applicants at all, which was not true. The 2015 Will actually divided the Estate between the Applicants and Ms. Moniz, but the psychologist had prepared her report based on erroneous information and under the inaccurate assumption that the 2015 Will disinherited the Applicants.


The Court noted that, while the propounder of the Will (in this case, Ms. Moniz) had the legal burden of proving that Mr. Medeiros had testamentary capacity on a balance of probabilities, there is a rebuttable presumption that Mr. Medeiros did have the requisite capacity (see: Vout v. Hay, [1995] 2 SCR 876). In this case, the Court ruled that the Applicants had not produced sufficient evidence to rebut that presumption and the Will was therefore found to be valid.

While there was no question that Mr. Medeiros’ physical condition had deteriorated significantly when he executed the 2015 Will, and that he was taking increasing doses of medication and was in significant pain, the Court placed significant weight on the evidence of the drafting lawyer that Mr. Medeiros had capacity to make the 2015 Will.

Importantly, the drafting lawyer had known Mr. Medeiros for years, was an experienced lawyer, and asked proper questions that would allow someone to determine whether Mr. Medeiros had testamentary capacity. While the drafting lawyer did not have notes from his meeting with Mr. Medeiros which, in the Court’s words was “not ideal”, it was clear from the lawyer’s affidavit and cross-examination evidence that he had detailed recollection of the meeting and that this evidence supported the finding the Mr. Medeiros did not lack testamentary capacity.

The Court further noted that, while the Applicants made “general statements” that the medications Mr. Medeiros was taking substantially limited his cognitive ability, the Applicants provided no specific evidence has to how Mr. Medeiros was suffering cognitively or how the specific medications were affecting his cognitive functions.

In regards to the retrospective capacity assessment prepared by the psychologist, the Court noted that the psychologist did not have the benefit of meeting with Mr. Medeiros in person (as the drafting lawyer did) and her report was based on erroneous information (that Mr. Medeiros disinherited the Applicants in the 2015 Will) which was not true. The report acknowledged that there was insufficient evidence to conclude that Mr. Medeiros lacked testamentary capacity and the Court placed “little reliance” in regards to same in any event.

Justice Shaw finally concluded that, aside from the Applicants’ “bald accusation” of undue influence, there was no evidence led that Ms. Moniz had exercised her power over Mr. Medeiros to have him execute the 2015 Will. Further, the Court found that the 2015 Will made sense in that it was in line with Mr. Medeiros’ intention to provide both for his common-law spouse and the Applicants.

In short, there was insufficient evidence produced by the Applicants to rebut the presumption that the 2015 Will was validly executed, free from undue influence.


  1. Interests of Justice

The Court’s ruling on the preliminary matter of whether to convert the application to a trial provides an important reminder: where the written or documentary evidence before a court is sufficient to resolve the matters at issue, the court will err on the side of having the matter heard by way of an application and not a trial, to save party and court resources.

  1. Lawyer’s Evidence

This case is a prime example of the importance of the drafting lawyer’s evidence in any will challenge dispute. Because the 2015 Will was drafted by an experienced will-drafting-lawyer, who had known Mr. Medeiros for years, and had met with Medeiros in private and had asked him proper questions that would allow the lawyer to determine that Mr. Medeiros had capacity, the judge accepted the lawyer’s evidence as going a long way toward establishing capacity.

The fact that the lawyer had a strong recollection of his meeting with Mr. Medeiros was helpful for Ms. Moniz’ case. Further, the Court’s ruling here is an indication that significant weight will be placed on a drafting lawyer’s contemporaneous assessment of the testator’s capacity upon taking instructions, despite the fact that the lawyer may not be a medical professional and not qualified to make medical assessments.

Finally, the Court noted that, ideally, the drafting lawyer would have kept detailed notes of his meeting with Mr. Medeiros, which is a helpful practice point.

  1. Expert Opinion Reports

In this case, while the Applicants tendered an expert opinion report from a qualified expert, it did not help their case for the below reasons.

Firstly, the psychologist had been given inaccurate information regarding the 2015 Will, and then based the report, in part, on that erroneous information, caused the court to put less weight on her expert evidence.

In addition, the expert report did not come to any firm conclusion. It set out that while it was “unlikely” Mr. Medeiros had an understanding of the 2015 Will, the report concluded that there was insufficient evidence to determine incapacity.

Finally, the Court noted that the psychologist was disadvantaged in providing her evidence, because she did not have an opportunity to actually assess Mr. Medeiros in person, while the drafting lawyer did.

  1. Will Challenges, Generally

Justice Shaw’s reasons provide an important reminder that, even when a Will has been drafted and executed just days before the testator’s death, and even in cases where the testator may be very sick when providing instructions for and executing a Will, the general rules still apply. The testator is still presumed to have capacity until that presumption is rebutted by reliable evidence to the contrary.

Even in such circumstances, when there is a death-bed Will executed in dire circumstances when the testator is gravely ill, the challengers of the Will still have the legal burden and must produce enough evidence to rebut the presumption of capacity. In this case, the Applicants failed to produce sufficient evidence, medical or otherwise, that their father was lacking testamentary capacity when he executed the 2015 Will. The fact that Mr. Medeiros was heavily medicated and suffering severely from terminal lung cancer, coupled with the Applicants’ “bald allegations” and “general statements” suggesting incapacity or undue influence were insufficient.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


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