The Ontario Superior Court of Justice has dismissed a self-represented applicant’s challenge to the validity of her deceased, separated spouse’s final Will, finding that she failed to provide sufficient evidence of “suspicious circumstances” to displace the legal presumption of capacity1. The court upheld the man’s October 2023 Will, which he executed after their separation, and also ruled that the executor named in that Will, his mother, has the authority to decide on the disposition of his cremated remains. The applicant, Patricia Ann Mitten, had sought to have the Will set aside, alleging that the deceased, David Peterson, lacked the testamentary capacity to sign it due to a cognitive brain disorder.
The court heard that Ms. Mitten and Mr. Peterson met in the fall of 2020 and were married in September 2022. They separated in either January or July of 2023, though Ms. Mitten continued to provide intermittent care for Mr. Peterson afterward. Mr. Peterson suffered from multiple serious health issues, including cirrhosis, diabetes, mobility problems, and severe nerve damage, which the court noted were worsened by his failure to follow medication instructions. Ms. Mitten originally filed a guardianship application while Mr. Peterson was still living, but the scope of the case narrowed after he passed away on October 17, 2024, during the proceedings. The dispute centered on whether Mr. Peterson was of sound mind when he made his final Will, leaving his modest estate, valued between $1,200 and $10,000, in a manner that was contrary to his previous wishes.
The timeline of Mr. Peterson’s estate planning was a key element. On June 2, 2022, while with Ms. Mitten, Mr. Peterson had a Will prepared by lawyer Richard Wright. This Will named Ms. Mitten and his mother, Linda Peterson, as joint and several estate trustees, with Ms. Mitten as the residual beneficiary. Just a few months later, on August 19, 2022, he amended this Will with the same lawyer, this time appointing Ms. Mitten as the sole estate trustee and residual beneficiary, relegating his mother to the role of alternate. This changed significantly after the couple separated in 2023. In October 2023, Mr. Peterson retained a new lawyer, Matthew Ward, for the specific purpose of changing his Will and powers of attorney.
The court received detailed evidence about the preparation of this new, contested Will. Mr. Peterson first met with Mr. Ward on October 6, 2023, to provide instructions. He provided further instructions during a second meeting on October 12. The law firm’s clerk also spoke with Mr. Peterson about the Will on October 6, 13, and 18. The court noted that the calls on October 13 and 18 were unsolicited and initiated by Mr. Peterson himself. He received draft documents on October 17, verbally approved them on October 18, and attended Mr. Ward’s office on October 24, 2023, where he signed the final Will in the presence of two witnesses. It was this document that Ms. Mitten sought to invalidate.
Ms. Mitten’s central argument was that Mr. Peterson lacked the capacity to execute this new Will. She alleged that he suffered from Wernicke-Korsakoff syndrome (WKS), a brain disorder often caused by chronic alcohol abuse. In support of her position, she relied heavily on two medical documents. The first was a “Manulife Financial Group Benefits Attending Physician’s Update” completed by Mr. Peterson’s physician, Dr. Evans, on or about January 18, 2023. This form noted “poor memory” and “poor focus,” and in response to specific questions, Dr. Evans indicated that Mr. Peterson had a “cognitive/mental impairment” and was not “competent to endorse checks and control the use of proceeds.” The second document was a “Certificate of Incapability” signed by Dr. Evans on October 7, 2023, just 17 days before the Will was signed. This form, related to a CPP Benefits application, included “no” responses to questions about whether Mr. Peterson had sufficient understanding to pay bills, memory to track finances, or ability to balance accounts. Ms. Mitten argued these documents proved he was incapable of understanding or executing legal documents.
In his analysis, Justice Holowka found that Ms. Mitten’s evidence was insufficient to overturn the Will. The court noted that Ms. Mitten, who represented herself, had been advised to seek legal counsel and had not submitted a key affidavit from Dr. Evans within the required timeframe. Justice Holowka described the evidence Ms. Mitten did provide as “voluminous and frequently internally inconsistent,” stating it would be “risky” to rely on her “highly subjective interpretation of events” without independent confirmation. The court found “no clear documentary evidence” that Mr. Peterson was ever formally diagnosed with WKS. On the contrary, hospital reports from March 14, 2023, and March 23, 2023, showed that doctors had specifically considered WKS and declined to diagnose it. Subsequent hospitalizations in July 2023, November 2023, and March 2024 also produced no such diagnosis.
The court also found evidence that directly contradicted Ms. Mitten’s claims. A note from Mr. Peterson’s social worker, Stephanie Stoddard, before his June/July 2023 hospitalization, indicated that Mr. Peterson was participating in his own decision-making. Ms. Stoddard noted that Mr. Peterson was “accusing the Applicant of attempting to portray him as incompetent” because she was aware he wished to make changes to his Will. The social worker’s own belief was that Mr. Peterson was capable of making his own decisions. When Mr. Peterson was discharged from the hospital on November 9, 2023, after the Will was signed, he demonstrated a good understanding of his discharge instructions. Ms. Mitten’s response to this was to claim that he was able to “trick” the doctors.
Justice Holowka then analyzed the two key forms Ms. Mitten relied on. The Manulife form from January 2023, he ruled, failed to meet the evidentiary threshold as it was “temporally distant” from the Will’s execution in October 2023. Furthermore, the court noted that Ms. Mitten herself had testified during discovery that she believed Mr. Peterson did have “mental capacity” when he signed that very form. The Certificate of Incapability from October 7, 2023, was also found to be insufficient. The judge ruled it was not a formal capacity assessment under the Substitute Decisions Act and did not address the specific test for a “sound disposing mind.” Moreover, Dr. Evans had not met with Mr. Peterson on the day he signed it. Critically, the judge pointed out that the form itself stated Mr. Peterson did not suffer from a “significant impairment of judgement due to altered intellectual function.”
The court outlined the three-part legal test for challenging a Will. First, the propounder of the Will (Ms. Peterson) must prove its due execution, which creates a presumption of validity and capacity. The court found this was easily met. The Will was prepared by a lawyer, Mr. Peterson was actively involved in its drafting over several weeks, he reviewed it twice, and he signed it properly with witnesses. The judge noted the “very straightforward nature of the estate” supported the conclusion that Mr. Peterson understood its contents.
Second, the burden shifted to the challenger (Ms. Mitten) to point to “some evidence” which, if accepted, would create “suspicious circumstances” and rebut the presumption of capacity. Justice Holowka concluded that Ms. Mitten failed to meet this burden. Neither the Manulife form nor the CPP certificate, individually or collectively, constituted “some evidence” of suspicious circumstances related to his testamentary capacity in October 2023. The judge stated that Mr. Peterson’s poor health and alcoholism, by themselves, did not raise concerns about his capacity in this case. Because Ms. Mitten failed to rebut the presumption, the court did not need to proceed to the third step of the test. The presumption of validity remained, and the Will was declared valid.
Finally, the court addressed Ms. Mitten’s request for an order releasing Mr. Peterson’s ashes to her. She asserted this was in accordance with his clearly expressed wishes, but the court found “no written or documentary evidence to confirm this contention.” The judge noted that he had asked Ms. Mitten during oral argument if dividing the ashes was a reasonable compromise, but she “rejected this idea and maintained that the remains should remain undivided.” Citing legal precedent, the court affirmed that the duty of an executor includes the right to custody of the body and the authority to make decisions about its disposal. Given the finding that the October 2023 Will was valid, the court concluded that the disposition of Mr. Peterson’s ashes “shall be made by the executor, Linda Peterson.” The court dismissed Ms. Mitten’s application in its entirety and requested written submissions from the parties on the issue of legal costs.
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