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When the Love is Equal, but the Will is Not

Disinheriting Your Wealthy Son so the Poorer Son Could Catch Up

February 2019

Parents of multiple children often try to steer clear from favouritism, to ensure that each child is treated and cared for equally. This consideration often extends beyond a parent's lifetime as evidenced in their will, when instructions are provided for the equal division of assets between the children. When a testator's direction indicates otherwise, it often ignites sibling rivalry and results in will challenges, and a tremendous amount of court time. That is precisely what happened in Quaggiotto v Quaggiotto, 2019 ONCA 107, where one brother felt that the other wrongfully got more.

The Facts

Maria Quaggiotto died on March 27, 2016. She drafted a will that divided the residue of her estate equally between her two sons, Livio and Franco Quaggiotto. Maria later changed her mind and drafted a codicil, when she was 87 years of age, instructing the entirety of the residue to be left to Livio, resulting in the disinheritance of Franco completely.

The validity of the codicil was challenged before Justice Steven Rogin of the Superior Court of Justice. It was found that Maria did have testamentary capacity and she was not coerced or unduly influenced at the time of drafting the codicil. Justice Rogin was satisfied that Maria's disposition was not motivated by a lack of love for Franco, but by a belief that he was in a better overall financial position than Livio and that the codicil would even up the discrepancy between the two brothers.

Franco appealed this decision.

The Court of Appeal

Franco argued that a general knowledge of a testator's estate, as found by the trial judge, is not sufficient to meet the requirement for testamentary capacity. Rather, a testator must be aware of the value and magnitude of her estate. Franco further argued that the trial judge imposed too high a burden in defining undue influence and in not finding that Livio and his wife had pressured Maria to draft the codicil.

The Court of Appeal disagreed with Franco and explained that the law does not require that a testator have an "encyclopedic knowledge" of her assets as stated by Justice Laskin in Orfus Estate et al. v. Samuel and Bessie Orfus Family Foundation et al.1

The intention was noble, but the result led to significant strife amongst the brothers.

Further, no effect was given to Franco's submission of undue influence and coercion as there was no evidence of domination of Maria's will by that of another2 or pressure on her that she had no alternative but to submit to it.3 There was sufficient evidence to support the trial judge's conclusions, he described the evidence relied upon, and there were no palpable and overriding errors that infected his conclusions.

The appeal was dismissed and costs awarded to Livio.


All Mom wanted in this case was for her children to be financially stable. Her desire to have her children be financially equal upon her death – as they were when they were born – clearly played a motivating factor in her decision to draft a codicil to re-arrange her affairs.

This case is a tragic – but all too common – tale of how litigation can ensue when siblings who are not estranged are not provided for equally in a parent's last will and testament. The intention was noble, but the result led to significant strife amongst the brothers.

Those lawyers that draft wills should advise their clients of the likelihood of litigation occurring in similar circumstances as in this case.

Parents – young and old – who either have or are in the process of having wills drafted, should attempt to anticipate the battles that may occur after their death when the division of assets is seemingly unequal or unfair.

As we see all too often in the Estate Litigation Bar, the sad truth is that pathway to the courtroom is often paved with good intentions.
  1. 2013 ONCA 255
  2. Scott v Cousins [2001] O.J. No. 19
  3. Abdollahpour v Banifatemi, 2015 ONCA 834


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