Dec 22, 2017


Sweetnam v. Williamson Estate, 2017 ONCA 991 (CanLII)

[Hourigan, Brown JJ.A. and Himel J. (ad hoc)]


Cherniak, I. Hull and D. So, for the appellant, Dianne Lesage
S. Graham, for the respondent/cross-appellant, Terry Dooley
B. Donovan and G. Sidlofsky, for the respondent, Star Sweetnam

Keywords: Wills & Estates, Testamentary Capacity, Costs


Following a seizure on July 20, 2010, the deceased was diagnosed with brain cancer. He made two wills on separate dates leaving different portions of his estate to different persons under each. The trial judge heard evidence of a number of witnesses and found that the testator lacked testamentary capacity at the time he made these two wills.


(1) Did the trial judge err in holding that the testator lacked testamentary capacity?

(2) Should leave be granted to the estate trustee to appeal the award of costs?

Holding: Appeal dismissed. Motion for leave to appeal costs dismissed.


(1) No. The trial judge applied the test for testamentary capacity as outlined in the leading jurisprudence. He concluded that the testator was not aware of the nature and extent of his assets at the time he made the wills, did not remember the person he might be expected to benefit under his will and did not understand the nature of the claims that may be made by persons he was excluding. He found that the dispositions were affected by delusions. He articulated those delusions in his reasons. There were no palpable errors of fact. The inferences drawn were reasonably supported by evidence. There was no error in the analysis or application of the law by the court below.

(2) No. In estate matters, a court may order an estate trustee to pay costs personally if the estate trustee has acted unreasonably or in substance for his or her own benefit rather than the benefit of the estate. The trial judge found that the estate trustees were adversarial and unreasonable in refusing to consider settlement offers that were less than the results obtained. They also took unreasonable positions, such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial. Both estate trustees were responsible in carrying the litigation forward. There was no reason to interfere with the exercise of discretion of the trial judge regarding costs.