The decision in Gorska et al v. Zawadzinski, 2025 ONSC 5447 (“Gorska”), concerned the validity of a Will, raising questions about testamentary capacity and undue influence.
Background
On September 20, 2023, Janina (the “Deceased”) passed away at the age of 95. She was survived by her two adult children, Andrew and Maria, and other family members, including her niece Yolanta (the “Respondent”).[1] Andrew suffered from epilepsy and was disabled. As a result, Andrew and his spouse, Debra, had been residing with the Deceased at her house until the Deceased moved into a retirement home in September of 2021.[2]
The Wills: In March 2019, the Deceased executed a will appointing Bozena (the “Applicant”) and the Respondent as estate trustees.
In September 2019, the Deceased executed a will (the “2019 Will”) solely appointing the Applicant as the Estate Trustee.
On May 13, 2022, the Deceased executed a will (the “2022 Will”), appointing the Respondent as the sole estate trustee.
The 2022 Will differed significantly from the 2019 Will. The 2022 Will provided the Respondent with an additional $100,000, and the Respondent’s daughter, Jadwiga, with $50,000. Maria, the Deceased’s daughter, had her cash gift increased to an additional $500,000. Consequently, despite being disabled and described by the Deceased as likely needing care, Andrew had his overall gift reduced by approximately $800,000.[3]
The POA litigation
In 2021, litigation was commenced by the Applicant pertaining to the Deceased’s power of attorney documents (the “POA litigation”). The court held that the Defendant had, by unduly influencing the Deceased when her cognition had diminished, procured the power of attorney documents (“POAs”), appointing herself as her attorney. [4]
The court relied on evidence showing that at the time the Deceased signed the POAs, she had scored 3/30 on a MOCA test conducted the previous month, and the Respondent had been isolating her from her family. Throughout the POA litigation, the Deceased was appointed section 3 counsel.[5]
In Gorska, the Respondent relied on the same evidence from the POA litigation. However, the Respondent provided new evidence from three different individuals, supporting that the Deceased had testamentary capacity and was not unduly influenced.[6] Additionally, in the within Application, the Respondent retained counsel, whereas in the POA litigation, she was self represented.
This case summary will focus on the main issue presented to the court by the Applicant, which was whether suspicious circumstances were present when the 2022 Will was executed.
Law
The court noted that there is a rebuttable presumption of knowledge and approval of testamentary capacity when a will is duly executed with the requisite formalities.[7] However, this presumption can be rebutted by evidence of suspicious circumstances, which may include issues surrounding the will’s preparation, questions about the testator’s capacity, or evidence of coercion or fraud.[8]
Suspicious circumstances may also include changes in the will that deviate significantly from previous versions, the testator’s mental and physical condition, and the involvement of beneficiaries in the will’s preparation.[9]
When suspicious circumstances are present, the propounder must prove that the testator had knowledge, approval, and testamentary capacity, meeting a civil standard proportionate to the gravity of the suspicion. [10] In Gorska, the propounder was the Respondent, as she sought to uphold the 2022 Will.[11]
The burden of proving undue influence lies with the party challenging the will, which in Gorska, was the Applicant. [12] Factors supporting undue influence include the testator’s dependency on a beneficiary, social isolation, recent family conflict, or substantial pre-death wealth transfers. In Gorska, the 2022 Will was read to the Deceased and executed with the necessary formalities. This created a rebuttable presumption that the Deceased understood and approved the 2022 Will’s contents and that she had the requisite testamentary capacity.[13]
Analysis
The Applicant argued that there was sufficient evidence of suspicious circumstances to challenge the 2022 Will, citing previous findings of undue influence by the Respondent in the POA litigation. Additionally, the 2022 Will significantly altered the distribution of the Deceased’s estate to the Respondent and her daughter, raising further suspicion. The Respondent, however, contended that she acted in the Deceased’s best interests and that the changes in the 2022 Will reflected the Deceased’s wishes.
The court found that the evidence presented was inconsistent and had to proceed to trial due to unresolved conflicts in evidence and credibility issues. The new evidence provided by the Respondent in Gorska included medical reports demonstrating that the Deceased was not mentally impaired, contrary to the findings in the POA litigation.[14]
The court in Gorska also asserted that the trial will address whether the findings from the POA litigation were binding.
Concluding Comments
Gorska demonstrates that when suspicious circumstances are present, the burden shifts to the propounder to prove the testator’s knowledge, approval, and capacity, highlighting the critical role of evidence in will disputes.
—
[1] Gorska et al v. Zawadzinski, 2025 ONSC 5447 at para 5.
[2] Ibid at par a 5
[3] Ibid at para 24
[4] Ibid at para 24
[5] Ibid at para 24
[6] Ibid at para 36
[7] Ibid at para 15
[8] Ibid at para 19
[9] Ibid at para 18
[10] Ibid at para 19
[11] Ibid at para 19
[12] Ibid at para 18
[13] Ibid at para 21
[14] Ibid at para 55.
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Written by: Gabriella Banhara
Posted on: November 4, 2025
Categories: Commentary, WEL Newsletter
The decision in Gorska et al v. Zawadzinski, 2025 ONSC 5447 (“Gorska”), concerned the validity of a Will, raising questions about testamentary capacity and undue influence.
Background
On September 20, 2023, Janina (the “Deceased”) passed away at the age of 95. She was survived by her two adult children, Andrew and Maria, and other family members, including her niece Yolanta (the “Respondent”).[1] Andrew suffered from epilepsy and was disabled. As a result, Andrew and his spouse, Debra, had been residing with the Deceased at her house until the Deceased moved into a retirement home in September of 2021.[2]
The Wills: In March 2019, the Deceased executed a will appointing Bozena (the “Applicant”) and the Respondent as estate trustees.
In September 2019, the Deceased executed a will (the “2019 Will”) solely appointing the Applicant as the Estate Trustee.
On May 13, 2022, the Deceased executed a will (the “2022 Will”), appointing the Respondent as the sole estate trustee.
The 2022 Will differed significantly from the 2019 Will. The 2022 Will provided the Respondent with an additional $100,000, and the Respondent’s daughter, Jadwiga, with $50,000. Maria, the Deceased’s daughter, had her cash gift increased to an additional $500,000. Consequently, despite being disabled and described by the Deceased as likely needing care, Andrew had his overall gift reduced by approximately $800,000.[3]
The POA litigation
In 2021, litigation was commenced by the Applicant pertaining to the Deceased’s power of attorney documents (the “POA litigation”). The court held that the Defendant had, by unduly influencing the Deceased when her cognition had diminished, procured the power of attorney documents (“POAs”), appointing herself as her attorney. [4]
The court relied on evidence showing that at the time the Deceased signed the POAs, she had scored 3/30 on a MOCA test conducted the previous month, and the Respondent had been isolating her from her family. Throughout the POA litigation, the Deceased was appointed section 3 counsel.[5]
In Gorska, the Respondent relied on the same evidence from the POA litigation. However, the Respondent provided new evidence from three different individuals, supporting that the Deceased had testamentary capacity and was not unduly influenced.[6] Additionally, in the within Application, the Respondent retained counsel, whereas in the POA litigation, she was self represented.
This case summary will focus on the main issue presented to the court by the Applicant, which was whether suspicious circumstances were present when the 2022 Will was executed.
Law
The court noted that there is a rebuttable presumption of knowledge and approval of testamentary capacity when a will is duly executed with the requisite formalities.[7] However, this presumption can be rebutted by evidence of suspicious circumstances, which may include issues surrounding the will’s preparation, questions about the testator’s capacity, or evidence of coercion or fraud.[8]
Suspicious circumstances may also include changes in the will that deviate significantly from previous versions, the testator’s mental and physical condition, and the involvement of beneficiaries in the will’s preparation.[9]
When suspicious circumstances are present, the propounder must prove that the testator had knowledge, approval, and testamentary capacity, meeting a civil standard proportionate to the gravity of the suspicion. [10] In Gorska, the propounder was the Respondent, as she sought to uphold the 2022 Will.[11]
The burden of proving undue influence lies with the party challenging the will, which in Gorska, was the Applicant. [12] Factors supporting undue influence include the testator’s dependency on a beneficiary, social isolation, recent family conflict, or substantial pre-death wealth transfers. In Gorska, the 2022 Will was read to the Deceased and executed with the necessary formalities. This created a rebuttable presumption that the Deceased understood and approved the 2022 Will’s contents and that she had the requisite testamentary capacity.[13]
Analysis
The Applicant argued that there was sufficient evidence of suspicious circumstances to challenge the 2022 Will, citing previous findings of undue influence by the Respondent in the POA litigation. Additionally, the 2022 Will significantly altered the distribution of the Deceased’s estate to the Respondent and her daughter, raising further suspicion. The Respondent, however, contended that she acted in the Deceased’s best interests and that the changes in the 2022 Will reflected the Deceased’s wishes.
The court found that the evidence presented was inconsistent and had to proceed to trial due to unresolved conflicts in evidence and credibility issues. The new evidence provided by the Respondent in Gorska included medical reports demonstrating that the Deceased was not mentally impaired, contrary to the findings in the POA litigation.[14]
The court in Gorska also asserted that the trial will address whether the findings from the POA litigation were binding.
Concluding Comments
Gorska demonstrates that when suspicious circumstances are present, the burden shifts to the propounder to prove the testator’s knowledge, approval, and capacity, highlighting the critical role of evidence in will disputes.
—
[1] Gorska et al v. Zawadzinski, 2025 ONSC 5447 at para 5.
[2] Ibid at par a 5
[3] Ibid at para 24
[4] Ibid at para 24
[5] Ibid at para 24
[6] Ibid at para 36
[7] Ibid at para 15
[8] Ibid at para 19
[9] Ibid at para 18
[10] Ibid at para 19
[11] Ibid at para 19
[12] Ibid at para 18
[13] Ibid at para 21
[14] Ibid at para 55.
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