To create a valid will, a testator must have knowledge of and approve its contents.
Typically, knowledge and approval are presumed, so long as the will is read over to the testator, or its contents are otherwise brought to the testator’s attention. To obtain the benefit of this presumption, it is not even necessary to prove that the entire will was read by or to the testator. Earlier this year in Lester v. Lester, 2023 ONSC 1450, Justice Gomery confirmed that the propounder of a will “must simply establish that ‘the sense of the will, what was being disposed of, and how and to whom, was read or reviewed by the testator’”.
In Lester v. Lester, two of the deceased’s three children filed a notice of objection to an application for probate on multiple bases, including on the basis that their father did not have knowledge of his will’s contents and therefore could not approve it. However, since the children failed to present evidence which, if accepted, “would tend to negative knowledge and approval” of the will, their objection was dismissed.
In comparison, a will was declared invalid due to lack of knowledge and approval in Jung Estate v. Jung Estate, 2022 BCSC 1298. In this case, the court found that the testatrix was unable to appreciate that a gift to one of her sons would have the effect of essentially disinheriting her other son, who was to receive the residue of the estate.Justice Blake noted in her reasons that:
… knowledge and approval requires more than the will-maker “simply knowing the contents of the will” but requires that the will-maker is “aware of the magnitude of the residue of her estate and must ‘appreciate the effect’ of the disposition of her estate”[.]
While a testator must be aware of the magnitude of his or her estate, the actual requisite knowledge that an individual must have of their assets is not exacting. The Court of Appeal of Ontario confirmed in Quaggiotto v. Quaggiotto, 2019 ONCA 107 that testators are not required to have an encyclopedic knowledge of their assets. Similarly, in Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, the Court held that “a competent testator does not have to know the precise make up of her estate,” and is only required to know the nature and extent of her property in a general way.
Thank you for reading, and have a great day!