Sometimes the most instructive estate cases involve the smallest estates. This one was worth somewhere between $1,200 and $10,00, yet it produced a crystal-clear roadmap for anyone thinking of challenging (or defending) a will on capacity grounds.
Overview
The decision in Mitten (Peterson) v. Peterson, released on October 28, 2025, offers a clear and careful explanation of how Ontario courts approach challenges to a will based on concerns about mental capacity. The applicant, a separated spouse acting without a lawyer, asked the Court to set aside her late husband’s 2023 will and to order that his ashes be released to her. Justice Holowka dismissed the application, upheld the will, and confirmed that the executor named in that will had the authority to decide what should happen to the remains. What makes the decision useful is not its complexity, but its clarity about what evidence is required to challenge a will effectively.
The Facts
David Peterson and Patricia Mitten met in 2020, married in 2022, and separated the next year. During this period, Mr. Peterson struggled with significant medical problems: advanced liver disease, long-term alcohol use, diabetes, rheumatoid arthritis, nerve damage, and mobility issues. In 2022 he made wills that left his estate to Ms. Mitten. After their separation, however, he contacted a new lawyer, met with him twice, telephoned the office several times on his own initiative, reviewed drafts, and in October 2023 signed a new will that appointed his mother as estate trustee and beneficiary. He died a year later in October 2024.
Ms. Mitten challenged the new will primarily on the basis that Mr. Peterson lacked testamentary capacity. She relied heavily on two documents: a Manulife form from January 2023 that mentioned cognitive limitations, and a CPP-Disability certificate completed in October 2023 for government-benefit purposes. She also believed her husband suffered from Wernicke–Korsakoff syndrome, although no treating physician had diagnosed him with this condition, and hospital records repeatedly noted that the criteria for that diagnosis were not met. Despite the seriousness of Mr. Peterson’s health issues, the medical documentation did not establish that he was incapable of understanding a will or giving instructions in October 2023, when the estate planning occurred.
The Law
Ontario follows a well-established framework for will challenges, most notably from the Supreme Court’s decision in Vout v. Hay. A properly executed will raises a presumption that the testator knew and approved of its contents and had the necessary capacity. The person challenging the will must then point to some evidence of suspicious circumstances capable of displacing that presumption. Only if that threshold is met does the burden shift back to the party supporting the will to prove capacity.
The legal test for testamentary capacity is specific. A person must understand the nature of making a will, the extent of their property, the claims of those who might expect to benefit, and the effect of the distribution they are choosing. This test focuses on the time the instructions were given and the will was signed. A person may be ill, vulnerable, or even impaired in certain areas of life yet still retain the mental ability required to make a valid will.
The Court’s Analysis
Justice Holowka concluded that the will was properly executed and that the presumption of capacity applied. The central issue became whether the applicant had offered evidence that could meaningfully call the testator’s capacity into question. The two documents she relied upon did not serve that purpose. Neither the Manulife form nor the CPP certificate was a capacity assessment under Ontario’s Substitute Decisions Act. They were created for insurance and benefit-eligibility purposes and did not address the legal test for testamentary capacity. The CPP certificate, in fact, specifically stated that there was no significant impairment of judgment due to altered intellectual functioning. The Manulife form was completed nine months before the will was made, making it too remote in time to be reliable evidence of the testator’s state of mind in October 2023.
The Court noted that the lawyer’s file provided consistent, contemporaneous evidence that Mr. Peterson was capable of providing instructions. He initiated contact, asked questions, reviewed drafts, and attended to the signing of his will in the presence of two witnesses. Because the applicant did not provide “some evidence” capable of displacing the presumption of capacity, the Court did not need to decide the issue on a full evidentiary record. The will therefore remained valid.
On the question of ashes, the Court applied long-standing authority holding that, in the absence of clear instructions from the deceased, the estate trustee decides how the remains are handled. There was no documentation indicating that Mr. Peterson wished his ashes to go to the applicant, so the executor named in the valid will retained that responsibility.
Lessons Learned
This decision serves as a reminder that documents prepared for financial or disability-benefit purposes rarely address the legal test for making a will. Serious illness, even when accompanied by cognitive challenges, does not automatically mean a person lacks testamentary capacity. Courts place considerable weight on the records of the drafting solicitor, particularly when those records show a testator giving coherent instructions, asking questions, and reviewing documents. The case also illustrates that self-represented litigants are treated with patience, but the evidentiary burden remains the same. Finally, if a person has specific wishes about their remains, those wishes should be written down in clear terms; otherwise, the executor will make the final decision.
Contact our estates litigation lawyers at 416-847-1859 or email our Managing Partner Daniel Walker daniel@bobilawalkerlaw.com
