In Schickedanz v. Schickedanz, 2026 ONCA 191, the Ontario Court of Appeal dismissed an appeal from a trial decision invalidating a handwritten codicil on the basis of suspicious circumstances relating to both knowledge and approval and testamentary capacity. The decision provides a clear appellate endorsement of the evidentiary burden imposed on a propounder where a holograph testamentary document significantly departs from a prior estate plan.
Background
The deceased executed a lawyer‑drafted will in 2007 providing for an equal division of her estate among her five children. In 2016, at age 85, she executed a handwritten codicil purporting to leave the family “home farm” to one child alone. By that time, the property had appreciated substantially and represented the majority of the estate’s value. The codicil was prepared without legal advice and the sole beneficiary played an active role in its execution.
Following the deceased’s death, the remaining children challenged the validity of the codicil.
Trial Decision
The application judge found that the codicil was executed in suspicious circumstances, including:
- 1. A marked departure from the prior, long‑standing estate plan of equal distribution;
- 2. The absence of professional involvement in the preparation of the codicil;
- 3. The beneficiary’s instrumental role in its execution; and
- 4. Evidence of cognitive impairment and confusion proximate to execution.
As a result, the burden shifted to the propounder to establish knowledge and approval and testamentary capacity on a balance of probabilities. The trial judge concluded that this burden was not met and declared the codicil invalid.
Issues on Appeal
The appellant argued that the trial judge:
- 1. Misidentified or overstated suspicious circumstances;
- 2. Applied an incorrect legal standard by requiring proof that the deceased understood the “magnitude” of the gift;
- 3. Placed undue reliance on medical records; and
- 4. Provided insufficient reasons.
Court of Appeal Decision
The Court of Appeal rejected each ground of appeal. It confirmed that the trial judge correctly identified multiple suspicious circumstances and applied the proper legal framework. Importantly, the Court clarified that while a testator need not know the precise value of their assets, knowledge and approval requires an understanding, in a general way, of the nature and effect of the disposition. In this case, the trial judge was entitled to conclude that the evidence did not establish that the deceased appreciated that the codicil would result in an unequal distribution of the bulk of her estate.
The Court further confirmed that the trial judge was not required to make an affirmative finding of incapacity. The issue was whether capacity had been affirmatively established in the face of suspicious circumstances.
Schickedanz reinforces that holograph codicils effecting significant changes to an existing estate plan will be closely scrutinized. Once suspicious circumstances are found, the evidentiary burden on the propounder is substantial and often determinative.
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