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ARTICLE · 09 MARCH 2023

Challenging The Validity Of Wills While A Testator Is Still Alive

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Can you challenge the validity of a will while the testator is still alive? In Palichuk v. Palichuk 2023 ONCA 116, the Court of Appeal for Ontario said no.

CanadaFamily and Matrimonial
Kimberly Cura
Kimberly Cura
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Can you challenge the validity of a will while the testator is still alive? In Palichuk v. Palichuk 2023 ONCA 116, the Court of Appeal for Ontario said no.

The background: Nina Palichuk has two daughters, Linda Palichuk and Susan Palichuk. On September 11, 2020, Nina executed four instruments:

  1. A will that disinherited Linda and named Susan as the main beneficiary of her estate;
  2. A continuing power of attorney for property that named Susan as the sole attorney;
  3. A power of attorney for personal care that named Susan as the sole attorney;
  4. A transfer and declaration of trust transferring Nina's home in Acton to Susan as a bare trustee.

Linda brought an application seeking a declaration that Nina was incapable of managing property and personal care and her appointment as Nina's guardian. She also sought the "opinion, advice, and direction of the Court" with respect to the above four instruments, claiming Nina was incapable of executing them or that they

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