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Estate Litigation for the Living

While doing some research, I stumbled across an interesting case, Gironda v. Gironda, involving a dispute over the management of the property and personal care of an elderly mother.  The unusual feature of this case is that it contains a ruling on the validity of the will of the mother, who, as of the time of the decision, is alive.

Ms. Gironda is an elderly widow and was living with one of her four sons, Vito.  She could not read or write in English, and speaks primarily the Calabrese dialect of Italian.  In 2005, she executed a Will leaving her home to Vito.  She also executed Powers of Attorney at the same time appointing Vito to manage her affairs.  The evidence suggests that she had begun to suffer from mild cognitive impairment at around this time, worsening after the execution of these documents. In 2008, she transferred her home to Vito for nominal value, retaining a life interest in the property.  In 2009, Vito transferred the majority of the funds in her bank accounts into his own.  These transfers and the Will and Powers of Attorney were challenged by Ms. Gironda’s other three sons.

The Superior Court of Justice reviewed the circumstances surrounding the execution of the 2005 documents, as well as the transfers, in detail.  In particular, the Court examined in detail the medical evidence surrounding the 2005 documents.  Although there was evidence of mild cognitive decline prior to the 2005 documents, the Court held that Ms. Gironda did in fact have testamentary capacity at the time of the making of the Will.  The Court went on to find that she was not unduly influenced, nor was there a lack of knowledge and approval.  After a thorough analysis, the Will was held to be valid.

This is very unusual step for an Ontario court to take.  Typically, a person’s will cannot be challenged until the person has died.

There are some American jurisdictions that have “antemortem probate” legislation.  Under such legislation, a testator can apply to have a testamentary document to be declared a valid Last Will while he or she is still living.  In theory, this avoids the problems that arise in substantiating the capacity of a deceased testator through retrospective evidence.  In practice, however, these provisions are rarely used and may lead to some undesirable consequences when relied upon, including publicizing the Will of the testator during his or her lifetime.

Antemortem probate legislation was recently considered by the British Columbia Law Institute, but the committee recommended against its adoption in that province.

The Gironda decision is currently under appeal.  It remains to be seen whether this unusual case will remain good law, or whether an appellate court will change it.  If it remains on the books, it may provide a way for future estate litigation to be pre-empted in the course of litigation over Powers of Attorney.

Josh Eisen