In the recent decision of Hamrak (Estate) v. Jobst, 2025 ONSC 1848, the Ontario Superior Court of Justice had to make a determination on testamentary capacity and the validity of two competing wills. The case serves as a pointed reminder of the evidentiary thresholds involved when alleging incapacity, and the importance of contemporaneous documentation from the drafting solicitor.
Background: Two Wills, One Estate
The applicant, Joe, brought an application challenging the validity of a November 22, 2023 will (the “2023 Will“) executed by his late father, John. Joe sought a declaration that an earlier will, dated March 16, 2022 (the “2022 Will“), was the valid Last Will and Testament of the deceased.
John passed away on January 7, 2024, at the age of 87. By the time of his passing, he was divorced, without a common-law partner, and survived by two sons—Joe and Richard—and a nephew, Grant.
The central issue was whether John had the requisite testamentary capacity to execute the 2023 Will, or whether that will was invalid due to John’s cognitive impairment, thereby reinstating the earlier 2022 Will as his binding testamentary instrument.
Medical Evidence: Cognitive Decline and Dementia
The medical evidence showed that John’s cognitive function began to decline in early 2023 and deteriorated rapidly throughout the year. In June 2023, a geriatric assessment revealed mild cognitive impairment. By October 2023, dementia had been diagnosed, and by November 20—the very date the 2023 Will was signed—his condition was described as “advanced.”
The evidence also indicated that no capacity assessment was conducted by the drafting solicitor, who had made no meaningful attempt to confirm that John understood the nature and effect of the 2023 Will. This lapse proved crucial.
Legal Framework: Validity of a Will
Citing the Ontario Court of Appeal in Neuberger v. York, 2016 ONCA 191 the Court reaffirmed the four elements required to establish the validity of a will:
- Due execution;
- Testamentary capacity;
- Knowledge and approval of contents; and
- Absence of undue influence.
Justice Wojciechowski held that while the 2023 Will may have been formally executed, the absence of testamentary capacity was fatal to its validity. The evidence clearly established that John was cognitively incapable of understanding the implications of the 2023 Will at the time of its execution.
The Missing Original 2022 Will: Proving a Lost Will
Although the original 2022 Will could not be located, the Court found that the applicant met the burden to prove a lost will under Sorkos v. Cowderoy, 2006 CanLII 31722, by satisfying the necessary four factors of:
- due execution of the will;
- proof of contents of the lost will;
- particulars tracing possession of the will; and
- if the presumption of revocation applies, rebuttal of the presumption the will was destroyed by the testator with the intention of revoking it.
The facts of this case were applied as follows:
- A copy of the 2022 Will was produced and confirmed to have been duly executed;
- There was no doubt as to the contents of the 2022 Will;
- The possession of the 2022 Will was clearly traced to as late as October 2023, where the 2022 Will was then either lost or destroyed at some point between October 2023 and John’s death; and
- The presumption of revocation did not apply, as John lacked capacity by the time the will disappeared.
The Additional Question of the $95,000 Transfer
The Court also addressed a questionable October 2023 transfer of $95,000 from John’s account to Grant. This account was jointly held with Joe and was intended to pass to Joe on death. The Court held that the gift was invalid, as John lacked the requisite mental capacity to make it. Grant was ordered to return the funds.
Costs Award
While Joe was successful in validating the 2022 Will and securing his appointment as estate trustee under the 2022 Will, the Court was measured in awarding costs.
Justice Wojciechowski acknowledged that the litigation ultimately benefited Joe personally—particularly in obtaining exclusive title to John’s real property and recovering the $95,000 transfer—rather than the estate as a whole.
Applying principles from Westover Estate v. Jolicouer, 2024 ONCA 81, the Court declined to award full indemnity costs. Instead, it granted partial costs of $8,500 to be paid from the estate, rejecting Joe’s full claim of $17,502.98.
Takeaways
- Testamentary Capacity Must Always Be Scrutinized – Especially when there is known cognitive decline, lawyers must take steps to document capacity at the time of execution, including formal assessments where appropriate.
- Solicitors Must Be Diligent – The absence of capacity evidence in a solicitor’s file can be fatal to the validity of a will.
- Copies of Wills May Be Admitted – So long as the legal test for a lost will is met, courts will accept copies in lieu of originals.
- Costs Awards Follow Benefit – Even when litigation is necessary, courts will carefully assess who actually benefits from the outcome when determining costs from the estate.
Conclusion
The Hamrak (Estate) v. Jobst decision reinforces that diligence, evidence, and precision are indispensable—both in drafting wills and in challenging them—while also illustrating the courts’ balancing act of protecting the true wishes of testators and ensuring fairness in the administration of an estate.
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