The Saskatchewan Court of Appeal in Moroz v Moroz Estate, 2026 SKCA 22 confirmed that a challenger must possess firsthand evidence of incapacity in order to subject a will to solemn form.
Moroz Estate reminds parties that uncontradicted, contemporaneous solicitor evidence will often defeat any challenger who alleges incapacity but is unable to provide firsthand contemporaneous evidence of incapacity which is contemporaneous to the making of the will.
Factual Background:
- Melvin died in July 2024. At the time of his death, his principal asset was four quarter sections of farmland. In a will executed in October 2016 (the “2016 Will”), Melvin appointed his sister, Zoria, and her husband, Bernie, as executors and left his entire estate to them.
- The 2016 Will revoked an earlier will executed in 2009, under which Melvin’s estate was divided equally among his four siblings.
- Following Melvin’s death, Zoria and Bernie applied for probate of the 2016 Will. One of Melvin’s siblings, Leonard, opposed the grant and applied for an order requiring the 2016 Will to be proved in solemn form. Leonard alleged that Melvin lacked testamentary capacity when the 2016 Will was executed, pointing to Melvin’s history of mental illness, limited education, and difficulties managing aspects of his personal and farming affairs.
- Zoria, another sibling (Janice), and the drafting solicitor who drew the will, Mr. Tangjerd, filed affidavit evidence responding to the challenge. Mr. Tangjerd deposed that he took careful steps to assess Melvin’s capacity, met with him alone, reviewed the will in detail, and was satisfied at the time of execution that Melvin understood the nature and effect of the will and was not subject to undue influence.
- The chambers judge found that there was no genuine issue of incapacity which justified a trial:
[40] In my view, the respondents have brought forward evidence which positively affirms Melvin’s testamentary capacity in 2016 when he signed the last will and testament. … the evidence of Mr. Tangjerd on Melvin’s capacity at the time is particularly cogent. It is clear from Mr. Tangjerd’s evidence that he was exceedingly cautious and took extra steps to ensure he was satisfied Melvin had testamentary capacity. It is also apparent from Mr. Tangjerd’s evidence that he had experience in dealing with issues of testamentary capacity and undue influence. He outlines his practices in detail. His memorandums are thorough and were made contemporaneous to Mr. Tangjerd’s meetings with Melvin in 2016. Despite the concerns raised by Leonard regarding Melvin’s mental health struggles, the evidence of Mr. Tangjerd regarding Melvin’s capacity at the time he signed the will is sufficient to satisfy me that Melvin had testamentary capacity at the time. …
Issue:
The issue was whether the chambers judge had erred in finding no genuine issue of incapacity?
Determination in Moroz v Moroz Estate:
The Court of Appeal (“Court”) dismissed the appeal and upheld the chambers judge’s refusal to order a trial. The Court held that the executors met their burden by offering uncontradicted evidence addressing Melvin’s capacity at the material time.
Critically, the only evidence that spoke directly to Melvin’s mental state when the 2016 Will was executed came from the drafting solicitor, Mr. Tangjerd. Such evidence was corroborated by Zoria’s evidence.
In contrast, the challenger’s evidence focused largely on historical events and generalized concerns, rather than Melvin’s capacity at the time period in which the will was executed.
The Court emphasized that the mere existence of conflicting evidence does not automatically require a trial. Only conflicts relating to material facts capable of affecting capacity at the time of execution will justify proving a will in solemn form. Evidence related to the testator’s conduct or capacity that is not temporally related to the creation of the will is insufficient to raise a genuine issue.
The Court also rejected the argument that Mr. Tangjerd’s affidavit was deficient because it did not contain a detailed inquiry into Melvin’s medical history or a detailed investigation into the reasons behind why Melvin was significantly changing his will. The Court reiterated that testamentary capacity simply requires that the testator understand their property and form an orderly desire for its disposition. The Court is not required to make value judgments about the reasons for the testator’s decisions in that regard.
What lessons arise from Moroz?
Moroz reminds will challengers of several practical lessons:
- Capacity is assessed at the time of execution: Evidence of mental health diagnoses or historical difficulties, that long-pre dated the will, will carry limited weight unless it connects directly to the testator’s condition at the time of the will’s creation (see para 23-25). The Court held the following:
[23] Where a party challenges a will based on an allegation of testamentary incapacity, the focus of the inquiry must be on the testator’s capacity at the time the will is made. Evidence of problems exhibited by the testator that lack a temporal coincidence with the making of the will are generally not probative of whether the testator had the requisite capacity at the material time (Ritchie at paras 10-12; Kapacila at para 67; see also: Hrycyna v Hood, 2019 SKCA 30 at para 44, citing Stevens v Morrisroe, 2001 ABCA 195 at para 17, leave to appeal to SCC refused, [2002] 1 SCR viii).
- Not every conflict in the evidence warrants a trial: Only contradictions on material facts relevant to testamentary capacity at the critical time will require proof in solemn form (para 22, 24, 28). The Court held the following:
[22] …In order to rise to a level that requires proof of a will in solemn form, the conflicts in the evidence must relate to material points “that could affect a determination of capacity [or] undue influence” (McStay at paras 27 and 50). Conflicts in the evidence that are not material to such a determination provide no basis to order a trial of the issue (Bell at paras 36- 42; Witzaney at para 12).
…
[24] In my view, a fair reading of the Chambers judge’s reasons reveals that, although she found there to be some conflicts between the evidence provided by the challengers and the propounders of the 2016 Will, those conflicts did not relate to material points that could affect a determination of Melvin’s capacity at the time he made the 2016 Will. In their affidavits, Leonard and Everett provided evidence that touched on a number of things, including Melvin’s mental health diagnosis and resulting hospitalization in 2002, his lack of education …The Chambers judge found that this evidence was enough to “[draw] into question Melvin’s testamentary capacity due to a history of mental illness” (Decision at para 28). However, it is also apparent from the Decision that she recognized that the evidence focused largely on past events, and that none of it spoke directly to Melvin’s state at the time he executed the 2016 Will.
- Contemporaneous solicitor evidence is highly persuasive: Detailed affidavits and notes‑to‑file from the drafting solicitor, particularly where the solicitor met privately with the testator and turned their mind to capacity and undue influence, can be decisive. This is especially so when the challenger was not in proximity with the testator at the time of the will, and can offer no firsthand evidence of incapacity from that time period (para 26, 27, 40). The Court held the following:
26 …The evidence of Mr. Tangjerd was uncontroverted because no other evidence on the record related to interactions with or observations of Melvin in the days immediately leading up to, on the day of, or following the signing of the 2016 Will.
- Solicitors are not required to conduct exhaustive investigations into the testator’s circumstances or intentions: A lawyer’s evidence need not demonstrate a granular inquiry into every aspect of a client’s medical or financial history, or their decision to revise their prior will, in order to still offer evidence supporting a finding of capacity (para 35, 37, 40).
The Court held the following:
[35] In this regard, I do not read the decisions in Dieno, Kapacila, McStay and Kardash as authority for the proposition that, where a will is challenged, a lawyer’s affidavit must show that the lawyer inquired, in granular detail, into every issue of potential relevance to capacity before a Chambers judge can rely on it to dismiss a challenge to the will….
…
[37] In the present case, it is fair to observe that Mr. Tangjerd did not state in his affidavit that he had made a detailed inquiry about certain things, including Melvin’s medical history. However, there was nothing in the evidence to show that Melvin’s mental health condition was in a state that such an inquiry was called for at the time he met with Mr. Tangjerd. The evidence concerning Melvin’s mental health diagnosis was temporally far removed from the making of the 2016 Will, and there was no evidence that Melvin had ever been declared incompetent to manage his own affairs or that he had ever been hospitalized due to his condition other than on one occasion in 2002. Moreover, apart from the speculative statement in Leonard’s affidavit, there was no evidence to suggest that Melvin was not taking his prescribed medication at the relevant time.
…
[40] … Tangjerd’s uncontroverted evidence was that Melvin understood the meaning of the documents he instructed Mr. Tangjerd to prepare, understood what property he had, knew who he wanted it to go to, knew who would not be receiving the benefit of his estate, and provided reasons for why he wanted to dispose of his estate that way. Based on that evidence, it was open to the Chambers judge to find, as she did, that the test for testamentary capacity had been met, even though Mr. Tangjerd did not particularize the depth of the inquiry he had conducted into each individual detail. I see no error here.
These lessons offer a helpful reminder to challengers of the evidentiary threshold they must meet, before they incur large legal expense in bringing a will challenge.