Inability to manage finances not conclusive proof of testator’s incapacity: Quebec Superior Court

The testator disinherited his brothers and left estate to his friend

Inability to manage finances not conclusive proof of testator’s incapacity: Quebec Superior Court

The Quebec Superior Court has recently ruled that a testator’s inability to manage his finances on his own does not conclusively prove his incapacity to execute a will.

In Succession de De Feo, 2023 QCCS 1532, Crescenzo De Feo executed a will in 2007, naming the Royal Trust Company as executor and his friend, Giovanni Paolella, as beneficiary. Paolella passed away two days after Crescenzo, leaving his estate to his wife.

The executor applied to confirm Crescenzo's last will and testament. Crescenzo's nephew, Bruno De Feo, opposed the application. He is a beneficiary under a will that Crescenzo signed in 1999 that bequeaths his estate to his three brothers and their children. Bruno argued that Crescenzo was incapable of executing a new will in 2007 because he had dementia after having a stroke in 2004.

Bruno further claimed that a few months before Crescenzo signed the 2007 will, his brother Pascal petitioned the BC Supreme Court for a declaration that Crescenzo was mentally infirm and incapable of managing himself and his affairs.

The parties brought the case to the Quebec Superior Court, which noted that an applicant for confirmation of a will must prove three factors—the testator's capacity to make a will, the nature of the will's provisions, and the circumstances in which the will was drawn up.

The court explained that a person's capacity to make a will is presumed. However, a party could rebut this presumption if they bring prima facie evidence that raises serious doubt about the testator's capacity.

The court said that the capacity to make a will is the desire to dispose of one's assets in the manner described in the will and the ability to understand the will's provisions and its nature and consequences. Bruno's evidence demonstrated that Crescenzo could not manage his income and expenses independently, but it does not lead to a certain conviction that he did not understand what he was doing when he signed the will. The court pointed out that managing one's finances includes making payments when they are due, avoiding extravagant or unnecessary purchases and planning for future expenses. Meanwhile, making a will involves deciding how and to whom one's remaining assets will be distributed after death.

The court found that the evidence proved that Crescenzo could not independently manage his income and expenses. Still, it does not make a prima facie case that he did not understand what a will is or what he was doing when he disinherited his family in favour of his friend, Giovanni Paolella. The court concluded that Bruno failed to rebut the presumption that Crescenzo could make a will in 2007.

The court also found that Crescenzo did not want his brother Pascal and his nephew Michael to be involved in managing his affairs. He was upset that Pascal sold his home in Montreal and moved him to a nursing home in Coquitlam, BC. Crescenzo also expressed concern that Pascal was not transparent in managing his assets. In this context, the Royal Trust Company took over the management of his financial affairs.

The court noted that Crescenzo's decision to entrust his affairs to the Royal Trust Company was not unreasonable, given that he was at odds with the people he had originally entrusted with those responsibilities for three years. The court further noted that Royal Trust accepted the designation but insisted that he prepare a new will that named it as the executor. Crescenzo agreed and used the opportunity to disinherit his brothers and their children. He was unhappy about how they had treated him since he suffered a stroke.

Crescenzo chose to leave his estate to his friend, Giovanni Paolella, who was also mentioned in the 1999 will as the father of the second substitute liquidator of his estate in case Pascal and Bruno could not act. The court considered that Paolella was a good friend, and that the Paolella family was close to Crescenzo, who trusted them to look after his affairs to the same extent as his own family.

The court concluded that the decisions Crescenzo made, reflected in his 2007 will, are reasonable, personal, and responsible. Consequently, the court confirmed Crescenzo's 2007 will.

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