When framing an appeal from a will challenge, the applicable standard of review can be a very salient consideration. In light of the amount of deference that must be shown to findings of fact made by the lower court, it may not be strategic to appeal a decision based on findings of fact alone. Such appeals can only succeed if the lower court made palpable and overriding errors in the assessment of evidence, which can be quite challenging to establish: see Leonard v. Zychowicz, 2022 ONCA 212.
If an appeal is instead premised on an error of principle, such as the lower court failing to consider the requisite elements of a legal test or standard, or erring in the application of a test or standard, as was the case in McGrath v Joy, 2022 ONCA 119, the appellate court will be entitled to intervene, and may even conclude that no deference is owed to the lower court’s findings, if the appeal succeeds.
However, establishing an error of principle can be quite elusive, as demonstrated by the Court of Appeal’s recent decision in Roe v Roe, 2024 ONCA 179. The appellant in this case was disinherited by his mother, the testatrix, and argued that the lower court erred in principle with respect to both testamentary capacity and undue influence. The appeal failed on both counts.
In terms of undue influence, the appellant argued that the lower court erred by ignoring relevant factors for assessing undue influence articulated in prior case law and cited in Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.) as an example of factors that should be considered. In dismissing this ground of appeal, the Court of Appeal confirmed that undue influence must be assessed on a case-by-case basis with a focus on “the nature of the relationship between the alleged influencer and the deceased,” and also clarified that “there is no set list of considerations that must be considered in all cases when considering an allegation of undue influence.”
In terms of testamentary capacity, the appellant argued that the lower court applied an incorrect test with respect to “insane delusions.” This was a focus in the prior proceedings because of the bases upon which the testatrix swore she had disinherited the appellant, which included:
- because the appellant had reported his brother to police for elder abuse (which had indeed happened);
- because the appellant’s wife had called the testatrix’s family doctor with a “pack of lies” related to the elder abuse allegations and also raised the possibility of referring the testatrix for counselling (this phone call had also happened); and
- because the testatrix believed that the appellant and his wife had planned to contact the doctor for years to make trouble for her.
Adopting the approach taken by Justice Cullity in Banton v. Banton, 1998 CanLII 14926 (ON SC),the lower court ultimately found that the testatrix was not operating under insane delusions, attributing her belief to family dynamics, and concluded that she had testamentary capacity.
On appeal, the appellant took the position that the lower court “applied an incorrect test based on the erroneous view that a false belief with some basis in fact cannot be an insane delusion,” but appellate intervention was not warranted. While the record established that the testatrix “acted irrationally and hyperbolically at times,” the Court of Appeal observed that the lower court engaged in a detailed review of the circumstances before finding that the testatrix had testamentary capacity and that there was a factual basis for the disinheritance of the appellant.
This case aptly demonstrates how difficult it can be to appeal a will challenge. If the lower court engaged in a detailed review of the circumstances under which the will was made, focusing on salient considerations and not taking extraneous factors into consideration, it may be very challenging to establish an error of principle.
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