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If your will is unusual, take extra precautions (lessons from Ontario Superior Court)

11 July, 2022 • Blog
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Three months after her mother Rosalba Di Nunzio’s death, Lucia Di Nunzio made an application to the Ontario Superior Court of Justice asking, among other things, that her mother’s Will be declared invalid based on “suspicious circumstances, lack of capacity and undue influence.” In essence, Lucia alleged her sister Teresa Di Nunzio had maliciously arranged for Lucia to be cut out of their mom’s Will.

If Rosalba had handled things differently while she was alive, could she have saved her children from an expensive, three-year court battle over what the judge described as a “relatively modest estate?”

The sisters’ dispute ended up costing over $270,000 in legal fees and disbursements.

Don’t let your will be a surprise to your family

When you die, the person you have appointed as your estate trustee takes on a considerable burden. Among other things, they are going to have to locate and manage your assets, pay your outstanding debts and taxes, account for everything, and distribute your estate in accordance with your will.

After you die, if anyone challenges the validity of your will, your estate trustee is going to have to deal with that too — an emotional, difficult, time consuming and expensive additional burden. As unusual wills are more likely to be challenged, it is important to deal with any extraordinary circumstances while you are alive, before you leave distraught, angry, distrustful heirs to sort it all out.

The case of Di Nunzio v. Di Nunzio,[i] decided by Judge Laurence A. Pattillo of the Ontario Superior Court of Justice on October 8, 2021, illustrates the importance of sorting out extraordinary circumstances while you’re alive, and not leaving them as a surprise in your will.

Di Nunzio v. Di Nunzio — a brief family history

Rosalba Di Nunzio died on July 20, 2018; she was 80. She was survived by her three children: Robert Di Nunzio (54), Teresa (51), and Lucia (46). Rosalba’s will, made on March 1, 2017, appointed Teresa as the estate trustee and made her to sole beneficiary of the estate; it expressly disinherited Robert and Lucia.

When she died, Rosalba was living in the family home in Toronto, where she had lived for over 40 years and where she had raised her three children. Teresa and Robert lived with her, actively caring for their mom as her health declined during the last four years of her life. In 2017, just over a year before her death, Rosalba sold the family home to a neighbour who was kind enough to let her remain in her house until her death, which by then was known to be not too far off.  

Lucia lived with her boyfriend, Ian, in an apartment across the street from her mom and siblings — physically close to her family but emotionally very, very far away.

Rosalba made a new will in 2014, another in 2015, and then her final Will in 2017, each cancelling the one before. The changes confirm an increasingly fractious relationship between Rosalba and Lucia, her youngest child.

In the 2014 will, Rosalba made Teresa and Lucia joint estate trustees and left everything to her three children equally. Sometime between the 2014 will and the 2015 will, Lucia took a significant amount of money from Rosalba’s bank account without permission. Rosalba only discovered this when she was embarrassed at the checkout in Walmart because she had insufficient funds for her purchase. Rosalba was angry. Lucia admitted having taken Rosalba’s money (to be used to care for a sick dog) but she claimed to have paid her mom back. Banks records supplied by Teresa seem to indicate the money was never repaid.  

In 2015, Rosalba asked her lawyer to draft a new will, removing Lucia as both an estate trustee and beneficiary. As it is extraordinary to remove one’s own child as a beneficiary, her lawyer refused to draft the will unless Rosalba obtained a “capacity assessment” — an independent test to ensure a person has sufficient mental acuity to execute a valid will. The lawyer’s request made Rosalba angry, but Teresa and Robert convinced her to leave their sister in as an equal beneficiary. Thus, the 2015 will removed Lucia as an estate trustee (leaving only Teresa) but still left her estate in three equal shares to her three children.

The relationship between Rosalba and Lucia had been difficult long before the sick-dog money incident.  Lucia had a long history of drug and alcohol abuse. She was often violent — prone to slapping, kicking and punching when angry. Over decades, Lucia’s history had significantly affected her relationship with her mother.

In 2017, Rosalba retained a new lawyer who did his own capacity assessment and had no question as to her mental acuity. He drafted Rosalba’s final will as requested. It was executed on March 1, 2017, without a third-party capacity assessment. Rosalba’s final will left nothing to Lucia, she was out.

Application dismissed

Without a long discussion of the law as explained by Judge Pattillo, in the end, he found that there was no significant evidence of suspicious circumstances surrounding the final 2017 will. Rosalba suffered terrible pain at times, but there was nothing to indicate her mental acuity was affected by her physical state, chemotherapy, or pain medication — she had the requisite capacity to make a valid will and exclude her youngest child. Lucia may have been suspicious that Teresa had unduly influenced their mom, but those were nothing more than suspicions. Remember, Teresa and Robert had talked their mom into leaving Lucia in the 2015 will.

Lucia had not been told of the sale of the family home and suggested it was done in secret, perhaps as part of some family conspiracy against her. Judge Pattillo, though, found the secret sale to be no surprise, given the deleterious relationship between Rosalba and Lucia.

Judge Pattillo dismissed Lucia’s application in its entirety.

Lucia was surprised — compounding a family tragedy

Not only was Lucia never told of the sale of the family home, but she was not told of the 2017 will or even the 2015 will. Apparently, when her mother died, Lucia believed that she would be one-third heir to her mother’s estate. Leaving aside Lucia’s issues with drugs and alcohol, imagine how she must have felt to learn, only after her mother’s death, that her inheritance was zero.

It should not surprise anyone that, right or wrong, Lucia became suspicious of Teresa. Only upon Rosalba’s death did Lucia’s learn the contents of her mother’s will — Teresa and Robert had kept this news from her, as Rosalba had too.

Was it Lucia’s hurt and suspicion that fueled this divisive, expensive, three-year litigation?

The result isn’t what Rosalba wanted

It seems certain that Rosalba did not want her children in court, fighting over her will, and paying a lot of money to lawyers. What Rosalba wanted was to leave everything to Teresa, who would provide for Robert, and leave nothing to Lucia. She accomplished this, but at what cost? Well, in this case, we know the answer… over $270,000 and more than three years of anguish.  

Rosalba’s original lawyer from 2014 and 2015 — the one who refused to draft a new Will excluding Lucia without obtaining a capacity assessment — was prescient. If Rosalba had obtained a capacity assessment and properly documented the circumstances of her life when she decided to exclude Lucia from her will, it would have helped matters. It may not have stopped Lucia from pursuing litigation, but it would have put Teresa, the estate trustee, in a much better position to defend the validity of her mother’s final will.

Another option would have been for Rosalba, while she was alive, to have communicated her intentions to Lucia, and to have documented this communication. Again, this may not have stopped Lucia from pursing litigation, but it would have placed Teresa, as estate trustee, in a stronger position to defend the will.

If you are going to do something unusual in your will, like exclude on or more of your children, take extra precautions to document your unusual circumstances when you are still alive. You will increase the likelihood your testamentary wishes are followed, without unnecessary time or expense.

David Scharf

[i] Di Nunzio v. Di Nunzio, 2021 ONSC 6689 [2021 ONSC 6689 (CanLII) | Di Nunzio v. Di Nunzio | CanLII]


This information is not a substitute for competent legal advice from a licensed lawyer in your jurisdiction, wherever that may be.

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