Schickedanz v. Schickedanz, 2026 ONCA 191
Overview
In Schickedanz v. Schickedanz, 2026 ONCA 191, the Ontario Court of Appeal considered whether a handwritten codicil made by an 85-year-old woman, which transferred her most valuable asset, a $20 million farm property, exclusively to one child, was valid.
The Court upheld the Trial Judge’s decision that the Codicil was invalid because there were suspicious circumstances surrounding its preparation and execution, and the beneficiary failed to prove that the deceased:
- knew and approved the contents of the codicil, and
- had the testamentary capacity required to make the disposition.
The appeal was dismissed, and the appellant was ordered to pay $100,000 in costs.
Background Facts
Elma Schickedanz died on December 12, 2019. She was survived by four sons and one daughter, Charlotte.
The main asset of her estate was the family “home farm”, which had increased substantially in value and was worth approximately $20 million at the time of her death.
Earlier Wills, prepared with the assistance of a lawyer, provided for an equal division of the estate among the children.
In 2016, Elma executed a handwritten codicil stating that the home farm should pass entirely to Charlotte.
The Codicil stated that giving the farm to Charlotte was “always the wish” of Elma’s late husband, Gerhard.
However:
- Gerhard’s own Wills did not provide for the farm to pass exclusively to Charlotte;
- the family lawyer had previously been asked by Charlotte to prepare such a Codicil but declined without instructions directly from Elma;
- Elma’s other children were unaware of the Codicil until after it was signed.
The brothers challenged the validity of the Codicil.
Suspicious Circumstances Surrounding the Codicil
The Court emphasized that certain circumstances created a heightened obligation on Charlotte to prove validity.
The suspicious circumstances included:
1. Charlotte’s involvement in preparing the codicil
The Trial Judge found that Charlotte played an “instrumental role” in obtaining the document.
Her involvement included:
- discussing the proposed change with Elma;
- obtaining the paper used for the handwritten Codicil;
- reviewing the document after it was signed and telling Elma it “looked fine”;
- accompanying Elma to have it notarized;
- arranging for it to be stored with the existing Will.
The Court held that this involvement was relevant because Charlotte was the sole beneficiary of the change.
2. The dramatic departure from previous estate planning
The earlier Wills provided equal treatment among the children.
The Codicil represented a major change because it transferred the largest estate asset entirely to Charlotte.
The Court noted that a significant change benefiting one child, particularly where that child was involved in arranging the change, can create suspicious circumstances.
3. Elma’s health and cognitive concerns
At the time of signing, Elma had significant health issues, including:
- a brain growth;
- fainting episodes;
- congestive heart failure;
- anxiety;
- depression;
- memory loss;
- mild cognitive impairment.
Shortly after signing the Codicil, her doctor diagnosed:
- “Early dementia with repeating confusion.”
The Court held that these facts did not automatically prove incapacity, but they were sufficient to create circumstances requiring closer scrutiny.
Legal Principles Applied
The Court confirmed several important estate law principles.
1. Burden of Proof Shifts Where Suspicious Circumstances Exist
Normally, a person relying on a Will or Codicil benefits from a presumption of validity once proper execution is proven.
However, where suspicious circumstances exist, the burden shifts.
The person relying on the testamentary document must prove, on a balance of probabilities, that:
- the deceased understood and approved the contents; and
- the deceased had testamentary capacity.
The Court relied on the Supreme Court of Canada decision in Vout v. Hay.
Knowledge and Approval Requirement
The Court explained that the issue is not merely whether the deceased signed the document.
The question is:
Did the testator fully understand what was in the document and did the document reflect the testator’s actual intentions?
The Court rejected Charlotte’s argument that Elma only needed to understand the identity of the beneficiary.
The critical issue was whether Elma understood that she was giving away the majority of her estate to one child and departing from her previous intention of equal treatment.
The Court stated:
Elma needed to understand that the farm represented the bulk of her estate and that leaving it to Charlotte created an unequal distribution.
Charlotte failed to establish this.
Testamentary Capacity
The Court reaffirmed the traditional test for testamentary capacity.
A testator must understand:
- the nature and effect of making a Will;
- the extent of their property;
- the people who might reasonably expect to benefit;
- the claims of those being excluded.
The Court relied on: McGrath v. Joy.
The Court emphasized that the capacity test is a high standard, but the person does not need perfect knowledge of every asset.
A person only needs a general understanding of their property.
However, the evidence must show that the person understood the consequences of the disposition.
The Doctor’s Evidence
Charlotte argued that the Trial Judge improperly relied on medical notes rather than the doctor’s testimony.
The Court rejected this argument.
The doctor did not withdraw or contradict his notes.
The Trial Judge was entitled to consider:
- the medical records;
- the doctor’s testimony;
- evidence of Elma’s behaviour and confusion.
The Court confirmed that medical evidence does not need to establish incapacity. It can simply contribute to establishing suspicious circumstances.
Appeal Decision
The Court of Appeal dismissed Charlotte’s appeal.
It found that:
- the Trial Judge properly identified suspicious circumstances;
- the correct legal tests were applied;
- the evidence supported the findings;
- the reasons provided were sufficient for appellate review.
The Court concluded that the appeal was essentially an attempt to reargue factual findings already decided at trial.
Key Lessons for Estate Planning
1. Major Changes to Estate Plans Require Careful Documentation
A significant departure from previous wills, particularly one favouring a single beneficiary, should be carefully documented.
Best practices include:
- obtaining independent legal advice;
- documenting the reasons for the change;
- confirming the testator’s understanding of the consequences;
- recording capacity assessments where concerns exist.
2. Beneficiaries Should Avoid Participating in the Preparation Process
Where a beneficiary assists in preparing a testamentary document, the risk of challenge increases.
The safest approach is for beneficiaries to remain separate from:
- discussions about changes;
- arranging appointments;
- preparing documents;
- explaining the document’s contents.
3. Equal Treatment Expectations Matter
Where a parent previously expressed an intention to treat children equally, a sudden change benefiting one child may attract judicial scrutiny.
The issue is not whether unequal treatment is legally prohibited, but whether the deceased fully understood and voluntarily intended the change.
Conclusion
Schickedanz v. Schickedanz reinforces the importance of careful estate planning where a vulnerable testator makes a significant change benefiting one family member.
A handwritten codicil may satisfy the formal requirements of a testamentary document, but that does not end the inquiry. Where suspicious circumstances exist, courts will closely examine whether the deceased truly understood and approved the consequences of the change.
The decision serves as a reminder that capacity, knowledge, approval, and independent decision-making remain central safeguards in Ontario estate litigation.
Comment
Surely, if you have over $20 million, you should be able to hire a lawyer!
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com