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Lessons from Schickedanz v. Schickedanz, 2026 ONCA 191

Estate disputes frequently arise when a later testamentary document departs sharply from a person’s established estate plan. The difficulty is greater where the document is handwritten, prepared without legal advice, benefits one family member, and is made when the testator has cognitive and health concerns.

In Schickedanz v. Schickedanz, the Ontario Court of Appeal considered whether an informal codicil leaving a valuable farm to one child should be accepted as a valid testamentary disposition. The Court upheld the finding that the codicil was invalid because the propounder had not established knowledge and approval or testamentary capacity.

The decision provides an important reminder that suspicious circumstances do not change the civil standard of proof, but they do require the evidence to be scrutinized according to the gravity of the suspicion.¹

What Happened?

Elma Schickedanz had earlier, lawyer-assisted wills that divided the equity in the home farm equally among her daughter Charlotte and her four brothers (the Respondents) that she prepared in 2007. Elma later executed a handwritten codicil in 2014 purporting to leave the valuable farm to Charlotte alone.

The codicil was prepared without legal advice. Charlotte had previously called Elma’s solicitor and asked that a codicil producing the same result be prepared, but Elma never provided those instructions to the solicitor.

Elma had mild cognitive impairment, dementia, and periods of confusion. The day after the codicil was executed, she said that she had “done something yesterday” about which she was “unsure.”²

Charlotte sought to prove the handwritten codicil. Her brothers challenged its validity.

The codicil differed substantially from the earlier estate plan. It benefited Charlotte alone, even though the earlier wills contemplated an equal division and Elma had expressed a wish that her children be treated equally.³

The trial judge found that Charlotte had not established Elma’s knowledge and approval or testamentary capacity. The Court of Appeal upheld those findings and rejected the challenge to the adequacy of the trial judge’s reasons.

The Issues Before the Court

The Court was asked to consider:

1. Whether suspicious circumstances existed.
2. Whether Elma knew and approved the codicil.
3. Whether Elma possessed testamentary capacity.
4. Whether the trial judge provided adequate reasons.

What the Court Decided

Issue #1: Suspicious Circumstances

The Court confirmed that a valid testamentary disposition requires both knowledge and approval of the document’s contents and capacity to make the disposition. Where suspicious circumstances relate to either requirement, the party relying on the document must establish the requirement on the balance of probabilities. The evidence must be scrutinized “in accordance with the gravity of the suspicion.”⁴

The Court upheld the finding that suspicious circumstances existed. Relevant factors included:

• The codicil was handwritten and prepared without a lawyer.
• It benefited Charlotte alone.
• It departed from earlier lawyer-assisted wills providing for an equal division.
• Charlotte had previously requested a codicil leaving the farm to her.
• Charlotte played an instrumental role in procuring the document, reviewing it, arranging its notarization, and having it kept with the earlier will.
• Elma had cognitive impairment, dementia, and periods of confusion.
• Elma expressed uncertainty about what she had done the day after execution.⁵

The Court held that these circumstances provided “an ample foundation” for the finding of suspicion.⁶

A handwritten document is not invalid merely because it is informal. However, informality, beneficiary involvement, a significant departure from a prior estate plan, and concerns about the testator’s understanding or capacity may collectively require particularly careful proof.

Issue #2: Knowledge and Approval

Knowledge and approval required proof that Elma understood what was in the codicil and that the document represented her intentions. The issue was not whether Elma knew the precise value of the farm. A testator need not have “an encyclopedic knowledge” of their assets. The concern was whether Elma understood that the farm had appreciated to represent most of her estate and that leaving it to Charlotte would create an unequal division.⁷

The Court held that Charlotte had not shown that Elma “fully understood that she was giving Charlotte the bulk of her estate and creating an unequal division of her property.” The trial judge was therefore entitled to conclude that knowledge and approval had not been established.⁸

A testator need not know every detail of an estate. The evidence must nevertheless establish an understanding of the testamentary document’s substance and practical effect, particularly where the disposition changes a long-standing plan.

Issue #3: Testamentary Capacity

The capacity requirement asks whether the testator had a sound disposing mind. The testator must understand the nature and effect of a will, have a general recollection of the nature and extent of the property, understand what is being given, remember the people who might reasonably expect to benefit, and understand the nature of claims by people excluded from the will.⁹

The Court emphasized that the trial judge was not making an affirmative finding that Elma lacked capacity. The question was whether the evidence created suspicious circumstances relating to capacity and, if so, whether Charlotte had affirmatively established capacity.¹⁰

The evidence included Elma’s mild cognitive impairment, dementia, periods of confusion, demeanour, and uncertainty about what she had done. In the overall context, that evidence was sufficient to create suspicion and support the finding that Charlotte had not met the burden of proving capacity.¹¹

The Court also held that the trial judge was entitled to rely on the family doctor’s clinical notes together with his testimony. The testimony did not recant the observations or conclusions recorded in the notes.¹²

The existence of cognitive impairment does not automatically establish incapacity. But where capacity is placed in issue by the surrounding circumstances, the propounder must provide reliable evidence affirmatively establishing that the testator possessed testamentary capacity when the document was made.

Issue #4: Adequacy of the Reasons

The Court rejected the argument that the trial judge had overlooked or misinterpreted evidence. Arguments identifying evidence capable of supporting Charlotte’s position were, in substance, an attempt to reargue the case.¹³

The Court held that the reasons were “not only extensive but clear” and functionally permitted meaningful appellate review. Explicit credibility findings were not required because the case did not involve material, unresolved evidentiary controversies requiring close credibility analysis.¹⁴

A party cannot convert disagreement with factual findings into an argument that the reasons were inadequate. Clear reasons addressing the central findings may be sufficient even where every item of evidence is not expressly mentioned.

Why This Decision Matters

The case demonstrates that the validity inquiry extends beyond whether a document was signed or notarized. The Court examined how the codicil was prepared, who was involved, how it departed from prior wills, and whether the surrounding evidence showed that Elma understood its effect. An informal codicil that substantially changes a professionally prepared estate plan may be invalid where the propounder cannot establish intention and capacity through reliable evidence.¹⁵

The standard remained the balance of probabilities. However, the Court reiterated that the evidence must be scrutinized according to the gravity of the suspicion. A serious concern—such as a handwritten document that radically changes the estate plan in favour of a beneficiary involved in its preparation—requires correspondingly reliable evidence.¹⁶

The decision clarifies that knowledge and approval does not require proof that a testator knew the precise dollar value of every asset. It does require evidence that the testator understood the substance and practical consequences of the disposition, including where it gives most of the estate to one beneficiary and departs from an intention to treat children equally.¹⁷

Elma’s statement the day after execution that she had done something about which she was unsure was relevant in the overall assessment of capacity and understanding. Statements made shortly after execution may assist the court in determining whether the document reflected the testator’s informed intentions.¹⁸

Contact Barriston Law

Disputes involving handwritten wills and codicils can be legally and emotionally complex, particularly where there are concerns about capacity, undue influence, or a significant departure from a longstanding estate plan.

If you are questioning the validity of a will or codicil, have concerns about whether a loved one’s final wishes were properly reflected, or are involved in a dispute as a beneficiary, executor, or estate trustee, experienced legal advice can help you understand your rights and options.

The Estate Litigation team at Barriston Law advises clients on will challenges, capacity disputes, undue influence claims, powers of attorney disputes, and estate administration matters. Contact Barriston Law to discuss your situation with a member of our team.

Written by Vanessa Locicero