Challenging a will on the basis of testamentary incapacity, undue influence, or other grounds is almost never an easy endeavour. Between the presumption of capacity and validity, and the requirement under the Evidence Act that a claim on a deceased’s estate be corroborated by more than oral evidence, will challenges are often an uphill battle and require, at minimum, more than bald allegations and speculation. A clear reminder of this is found in the recent decision of Issa v. Aiello, 2025 ONSC 4055.
In Issa, the deceased had written two wills in her lifetime: her 2012 will left her estate to her six children in unequal shares, and her 2016 will left her estate to only two of her children in a 90/10 split. The applicant, who did not receive anything under the 2016 will, sought a declaration that the 2016 will was invalid for lack of testamentary capacity, undue influence, the deceased’s failure to approve or understand its contents, and failure to be duly executed in accordance with legislative requirements.
The court dismissed the application in its entirety. The 2016 will was found to be duly executed and there were no findings of undue influence or lack of capacity. Fatal to the applicant’s case was her failure to meet the minimal evidentiary threshold, both to rebut the presumption of validity and of testamentary capacity. The court cited the Court of Appeal for Ontario case of Neuberger v. York, 2016 ONCA 191 to note that, without a minimal evidentiary threshold, estates would be exposed to needless expense and litigation that could deplete small estates entirely.
None of the applicant’s allegations were found to have an air of reality. She proffered no corroborating evidence of her mother’s alleged dementia or of her sister’s undue influence. For example, the applicant claimed her sister went to the drafting lawyer’s office with their mother and gave instructions to him; however, this was directly contradicted by uncontroverted evidence from the drafting lawyer himself, as well as a family friend who attended with the deceased to translate for her. Moreover, the applicant made assertions that the family friend’s affidavit was fabricated, and yet she took no steps to cross-examine him or several other key witnesses.
The case reinforces the necessity for concrete evidence when contesting a will, to protect the integrity of testamentary documents and ensure that only legitimate claims proceed. As the court reminds us here, bare allegations and mere suspicions are not enough.