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Case Brief - Testamentary Capacity and Second Languages

In Silano v Silano, 2019 ONSC 2776, the Superior Court considered a will challenge involving an Italian-speaking testator who made a substantial change to his will shortly before his death.

The Facts

Mr. Silano was born in Italy, moved to Canada, and died in 2016 at age 84. He left behind four adult childre (Giulio, Barbara, Mary, and Pasquale) and nine grandchildren.

In 2004, Mr. Silano made a holograph will. The will was written in Italian, Mr. Silano's native language. This will created a life interest in Mr. Silano's house for Pasquale, after which the house would pass to the nine grandchildren.

In 2012, Mr. Silano had a heart attack. While in hospital, he instructed Pasquale to find the 2004 holograph will and take it to a lawyer for safekeeping.

Pasquale brought the will to a lawyer, Mr. Steven Bellissimo. The following week, Mr. Bellissimo contacted Mr. Silano about his will. Mr. Silano met with Mr. Bellissimo and executed a new will.

This new will, executed in 2013, replaced the holograph will. Importantly, it left the house directly to Pasquale. The will contained an error - referring to Pasquale's children when he did not have any - which Mr. Bellissimo wished to correct. But Mr. Silano saw the issue as minor, and insisted on signing the will as it was drafted.

The Issue

After Mr. Silano's death in 2016, three of his children (Giulio, Barbara, and Mary) challenged the will on grounds that Mr. Silano lacked testamentary
capacity when he signed the 2013 will.

They asserted that their father was unduly influenced by Pasquale and that he did not have knowledge of the contents of the will. They asserted that the will was signed under suspicious circumstances, since it was written in English (Mr. Silano's second language), was prepared by a lawyer found by Pasquale, and contained such a big departure from the original holograph will.


Legal Principles

For a will to be valid, a testator must know and approve of its contents (Balaz Estate, [2009] O.J. No. 1573; Barylak v. Figol, [1995] O.J. No. 3623). If a will is properly executed then this knowledge is presumed (Vout v Hay). However, if there's evidence of suspicious circumstances, then this burden of proof flips (Neuberger v. York, 2016 ONCA 191).

Application to the Facts

Mr. Bellissimo testified that he evaluated Mr. Silano's capacity, conducted a small test, and found him to be alert and understanding. While the will was prepared in English, Mr. Bellissimo read it and reviewed it with Mr. Silano in Italian.

Dietrich J considered the evidence of the parties and found both Mr. Bellissimo and Pasquale to be highly credible.

While the siblings asserted that Mr. Silano would never have given the house directly to Pasquale due to a deteriorating relationship with Pasquale's wife, they had no evidence to back up this assertion. They also had no evidence that Mr. Silano's mental capacity was diminished.

The siblings produced no evidence that Pasquale was dictating the terms of the new will to Mr. Silano or that he was even in the room when it was signed. There was no indication that Pasquale had a close relationship with the solicitor who prepared the will.

Consequently, Deitrich J found that Mr. Silano presumably knew and approved of the contents of the will. The 2013 was valid.

The Bottom Line

If you intend to successfully challenge a will, you need to have concrete evidence to back it up. Assertions aren't enough.