A will does not have to be fair. People can leave their estate to whoever they want, and they can cut out anyone they choose. That is a fundamental right.
But sometimes a will is so harsh, so out of character, and so inconsistent with everything we know about the person who signed it, that it raises a different question entirely: did they actually understand what they were doing?
That is exactly what happened in the case of Andrew Hrabovsky and his family. The Ontario Court of Appeal’s decision in Shannon v. Hrabovsky, 2024 ONCA 120, is one of the most instructive recent cases on how Ontario courts approach will challenges involving spite, confusion, and cognitive decline.
The Story of the Hrabovsky Family
Andrew Hrabovsky had two adopted children: a daughter named Gayle Shannon and a son named Glenn. Over the years, Andrew made several wills, and they tell a story of their own.
In his 2002 will, Andrew treated both children generously. He left equal shares of the residue of his estate to Gayle and Glenn, and included contingent interests for their children, his grandchildren, so that if either child predeceased him, their share would pass to the next generation. He named Glenn and his brother Michael as executors.
In 2006, Andrew went further. He updated his will to give Gayle the title to his Toronto house on top of her existing share, and added her as a third executor. By any measure, this was a father looking after both of his children, with a particular generosity toward his daughter.
Then, in July 2007, everything changed. Andrew signed a new will that reversed course entirely. The 2007 will disinherited Gayle completely, leaving everything to Glenn. But it went further than that. The new will also eliminated Gayle's children's contingent interest in the estate. These were Andrew's grandchildren. They had an ongoing relationship with him. They had nothing to do with whatever financial disagreement existed between Andrew and Gayle over some loans.
That last detail is what caught the court’s attention. Cutting out a child over a dispute is one thing. Cutting out grandchildren who had no involvement in the dispute is something else.
What Happened After the Will Was Signed
If the 2007 will reflected Andrew’s true, settled intentions, you would expect his behaviour afterward to be consistent with it. It was not.
Shortly after signing the will, Andrew called Gayle and told her he was worried he had signed a document whose contents he did not understand - that alone is a striking piece of evidence.
Then, in May 2008, Andrew gave Gayle the deed to his house. He apparently believed this would protect her entitlement to the property if any other documents he had signed, including a will, said otherwise. In other words, within months of signing a will that was supposed to punish Gayle, he was actively trying to give her his most valuable asset.
Andrew died in November 2014. Gayle did not learn the full contents of the 2007 will until January 2015. When she saw that it had not only disinherited her but also cut out her children, she decided to challenge it.
What the Court Decided
Under Ontario law, a properly executed will is presumed valid. But that presumption can be overturned if a challenger shows “suspicious circumstances” surrounding the will. In Shannon, the Court of Appeal identified several:
- The will was “unusually spiteful” in disinheriting grandchildren who had no connection to the underlying dispute.
- The will represented a dramatic reversal from the 2006 will, which had been even more generous to Gayle than the 2002 version.
- Andrew’s behaviour after signing the will was inconsistent with a deliberate intention to disinherit Gayle.
- Medical evidence showed Andrew was suffering from dementia.
- Andrew himself expressed confusion about what he had signed.
The Court concluded that the most likely scenario was that Andrew experienced an episode of confusion (possibly accompanied by paranoia) when he signed the 2007 will. He lacked testamentary capacity - the legal standard for whether a person understands the nature and effect of making a will, the extent of their property, and the claims of those who might expect to benefit from it.
The 2007 will was set aside.
What This Means If You Are Facing a Similar Situation
I sometimes speak with families who are dealing with a will that does not make sense to them. Sometimes a parent’s final will looks nothing like what they would have expected based on years of conversations, promises, and prior documents. Shannon gives us a useful framework for thinking about when a challenge might succeed.
Does a spiteful will automatically mean the person lacked capacity?
No. People are free to be unfair, and courts will not second-guess a testator’s choices just because they seem harsh. But when the spite is extreme, out of character, and targets people who had no involvement in the underlying conflict, it becomes evidence of something more than a change of heart.
What is testamentary capacity?
It is the legal test from the 1870 English case Banks v. Goodfellow, which is still the standard in Ontario, for whether someone was mentally competent to make a will. At the time of signing, the person must have understood four things: the nature of a will; the extent of their property; the people who might reasonably expect to inherit; and how those factors connect to the distribution they chose.
It is my practice to ask each person I write a will for questions that help me establish they have the testamentary capacity to make one.
What counts as a “suspicious circumstance”?
There is no fixed list. Courts look at the totality of the situation. In Shannon, the suspicious circumstances included the spiteful nature of the will, the dramatic departure from prior wills, the testator’s contradictory behaviour after signing, and medical evidence of cognitive decline. Other common suspicious circumstances include involvement of a beneficiary in preparing the will, isolation of the testator from family, or reliance on a new or unfamiliar lawyer.
What if someone says the person was “just angry”?
That is the most common defence in these cases, and sometimes it is true. People do change their minds. But in Shannon, the argument failed because Andrew’s actions after signing the will contradicted it. If someone truly intended to disinherit a family member, you would not expect them to hand over the deed to their house a few months later. The inconsistency was fatal to the defence.
How long do I have to challenge a will?
Shannon also addressed this question. The Court confirmed that the two-year limitation period under Ontario's Limitations Act starts from the date the challenger discovered (or ought to have discovered) the contents of the will. It does not necessarily start from the date of death. Gayle did not receive a copy of the 2007 will until January 2015, even though Andrew died in November 2014. Her challenge, filed in December 2016, was within time. But do not rely on this. The safest course is to seek legal advice as soon as you become aware of a will that concerns you.
When to Get Advice
If you are dealing with any of the following, it is worth having a conversation with a lawyer:
- A will that seems vindictive, especially toward people who had no involvement in any dispute
- A sudden, unexplained departure from a previous estate plan
- Concerns about dementia, confusion, or cognitive decline at the time the will was signed
- Behaviour by the deceased that contradicts the terms of the will
- Involvement of a single beneficiary in the preparation of the will
Will challenges fall under estate litigation. You can learn more about how I approach litigation on our Civil Litigation page, or visit our Wills & Estate Planning FAQ for answers to common estate planning questions.
If you do not yet have your own will in place, you can download our free Will & Estate Planning Worksheet to get started.
I advise clients in Peterborough, the Kawarthas, and across Ontario on will challenges, capacity disputes, and estate litigation. If you have concerns about a will and want to understand whether a challenge is worth pursuing, I am happy to discuss your situation.
Give me a call at (705) 749-0628 or book a consultation.
Barry W. Bussey is the principal lawyer at Bussey Ainsworth in Peterborough, Ontario. He has practised law for over 30 years and has experience in wills and estates, estate litigation, and constitutional law, including cases argued at the Supreme Court of Canada.
This article is for general information only and does not constitute legal advice. Every situation is unique. Please consult with a lawyer before making any decisions about a will challenge or estate matter.
