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Will Invalid Because of Suspicious Circumstances

1. Introduction

Francella v Tokarz[1] is an unusual case. The deceased wrote a Will, but no one is propounding it. He daughter, Kelly Lynn Francella, challenged the Will, and no one contested the application. Further, the value of the estate was barely above the small estate maximum. The case is significant because the court used its power to invoke the small estate procedure nonetheless.

2. Facts

The deceased, Janis Ena Scott, suffered from depression throughout her life. In a letter written to the Ministry of Community and Social Services in 1994, a psychiatrist diagnosed her as suffering from chronic neurotic depression. She was a chronic user of Lorazepam and opiates.

In 2012 the testator was involved in a motor vehicle accident and suffered a serious brain injury. In the ensuing litigation she was represented by her friend, Leanne Hinnegan, as litigation guardian. The testator was awarded $150,000 under a structured settlement payable for her benefit in monthly instalments until 2026 or to her estate if she should die before that date.

In 2018 the deceased obtained a $10,000 life insurance policy, which designated Ms Hinnegan as the sole beneficiary.

In 2019 the testator saw two different lawyers to have powers of attorney and a will prepared. One of the Respondents, Kathryn Tokarz, a daughter of a neighbour, took the deceased to the lawyers and was very involved in the estate planning. The first attempt did not result in a will, but the second did. It was drawn by a lawyer and executed along with powers of attorney. The documents appointed Ms Tokarz as executor and attorney and left her $5,000 in lieu of compensation. The rest of the estate was left to The Humane Society of Canada. The Will specifically excluded Ms Francella on the ground that the deceased had no relationship with her. It made no mention the deceased’s son, Mr Stackhouse, another Respondent.

Later in 2019, the deceased wanted to make a new will and also wanted to have the payments from the structured settlement made to her directly. However, nothing  came of that, since she would have had to undergo a capacity assessment, which she refused.

The deceased died 10 March 2021 at age 74. At the time of her death she had a lot of pain from the injuries she sustained and suffered from short- and long-term memory loss. She was survived by her two children, the Applicant and Mr Stackhouse. Both of them had a positive relationship with her until her death. Ms Hinnegan died three months later.

Ms Tokarz renounced her appointment as executor in April 2021, ‘to allow the family to move forward in contesting the Will’. She wrote an email to the Applicant in which she said that she did not think the deceased was of sound mind, and that she did not think that the deceased really wanted the settlement to go to the Humane Society and not to her children.

The Structured Settlement payments have been on hold until the appointment of a personal representative. The insurance company also continues to hold the proceeds of the insurance policy. The value of the estate was $150,058.81, that is, only $58.81 over the small estate maximum.

3. Analysis and Judgment

Justice V Christie began her assessment with stating the rebuttable presumption of knowledge an approval and testamentary capacity and noting that it can be rebutted by evidence of suspicious circumstance.

Her Honour concluded that the Will was invalid for a number of reasons:

(a) There was no propounder of the Will.

(b) Ms Tokarz, the named executor, was of opinion that the Will was invalid for lack of capacity.

(c) There was evidence that the deceased lacked capacity since at least 2012 when she was in the motor vehicle accident, and possibly also before that.

(d) Using a neighbour’s daughter to assist her with her estate planning and naming her as attorney and executor was suspicious.

(e) Specifically excluding the Applicant from the Will and failing to mention Mr Stackhouse at all, was suspicious.

(f) The Humane Society’s registration as a charitable organization was revoked in 2015.

(g) Ms Hinnigan’s estate did not assert any interest in the proceeds of the life insurance policy.

(h). It seemed clear that the deceased was incapable of making financial decisions and make testamentary dispositions when she made the Will.

Her Honour also declared that any other testamentary instruments made by the deceased after her accident were invalid.

Consequently, her Honour declared that the deceased died intestate and that the net estate should be distributed equally between her two children in accordance with the Succession Law Reform Act.[2] She ordered that the Applicant be appointed Administrator.

She also ordered that that the insurer pay the life insurance proceeds to the Applicant in her capacity as Administrator.

Very significantly, her Honour concluded that because the value of the Estate was barely over the small estate threshold, she could order that the process for administration of a small estate may be used. For this she relied on Rule 1.04(1.1) of the Rules of Civil Procedure,[3] which states:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved in the proceeding.

[1]    2022 ONSC 7066.

[2]    RSO 1990, c T.23.

[3]    RRO 1990, Reg 194, as amended.


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