Executive Summary: Key Legal and Evidentiary Issues

• Validity of a handwritten holograph codicil that purported to revoke an earlier lawyer-drafted will and leave the highly valuable “home farm” solely to one child.
• Existence and impact of “suspicious circumstances” surrounding the codicil’s preparation and execution, including the principal beneficiary’s instrumental role.
• Whether the testatrix had testamentary capacity on the codicil date, given documented early dementia, cognitive impairment, confusion and serious health issues.
• Sufficiency of evidence that the testatrix knew and approved the codicil’s contents, particularly that it effectively gave one daughter the bulk of the estate and upset equal treatment.
• Proper use and weight of the family physician’s clinical notes and testimony in assessing capacity and mental state near the time of execution.
• Adequacy of the trial judge’s reasons and whether any legal, factual, or “processing” errors justified appellate intervention.

Background and family estate structure

Elma and Gerhard Schickedanz built a substantial family fortune through land development, farming and construction, in addition to a horse breeding operation run from their “home farm.” They raised their children on this farm, where Gerhard, and later their daughter Charlotte, operated the horse breeding business. Much of Gerhard’s wealth was transferred to the children during his lifetime through an estate freeze of his holding company shares and separate monetary gifts to the sons. After Gerhard died in 2011, Elma became sole owner of the jointly held home farm by right of survivorship. The property had appreciated enormously because of its location near development lands, and by the time of Elma’s death in 2019 it was estimated to be worth around $20 million, representing the bulk of her estate.

The 2007 mirror wills and the equal division plan

In 2007, Elma and Gerhard executed mirror wills with the assistance of a lawyer, Edward Heakes. Those wills provided for an equal division of their property, including the home farm, among all of their children after the death of the survivor. Although there was evidence that Gerhard had, at various times, expressed a wish that Charlotte should ultimately have the home farm, he never changed his formal estate planning to reflect that intention. Both the 2007 will and an earlier will continued to provide for equal sharing between Charlotte and her brothers, and he did not execute any new testamentary instrument to give Charlotte the home farm outright.

The handwritten codicil and Charlotte’s central role

Years later, the estate plan shifted focus to a handwritten document. Around 2012 or 2013, Charlotte contacted Mr. Heakes and asked him to prepare a codicil to Elma’s will leaving the home farm to her alone. The lawyer refused to do so without receiving instructions directly from Elma, and those instructions never came. Despite that, on May 9, 2016, Elma executed a codicil in her own handwriting that purported to leave the home farm to Charlotte. This document, if valid, would revoke the equal-division terms relating to the farm in the 2007 lawyer-drafted will. Charlotte’s own evidence showed that she played an “instrumental role” in this process. She discussed Elma’s wishes with her immediately before the document was written, retrieved the paper on which the codicil was drafted, left while Elma wrote it, and then reviewed it on her return at Elma’s request, saying it “looked fine.” She then accompanied Elma to the City of Markham municipal office for notarization and arranged for a copy to be stored with Elma’s 2007 will at the family holding company’s office. Charlotte later described it as a “big event,” adding that once done, “it was like – it was done.” No lawyer or adviser was consulted in connection with the handwritten codicil, and the brothers were not advised at the time. The codicil described the bequest of the home farm to Charlotte as “always the wish” of Gerhard, even though none of his formal wills ever carried out such a wish.

Elma’s health, cognitive state and subsequent doubts

At the time she signed the codicil, Elma was 85 and had significant health challenges. In the year preceding execution, she had a brain growth, fainting episodes, congestive heart failure, hip pain from bursitis, and uncontrollable anxiety related to her health. She visited her family physician frequently and wore a diagnostic heart monitor the day before signing. There was evidence of memory loss and mild cognitive impairment almost a year before the codicil; within a couple of months afterward, her family doctor diagnosed her with “early dementia with repeating confusion.” Her anxiety, lifelong but exacerbated after Gerhard’s death, was sometimes not controllable and was associated with her worsening health. The day after the codicil was executed, Arthur visited Elma. She told him she had “done something yesterday” that she was “unsure about,” and showed him the document. When Arthur pointed out that it appeared to give the home farm to Charlotte alone, Elma became emotional and said words to the effect that she and Gerhard loved all the children equally and wanted to treat them equally. The conversation did not continue because she was visibly upset. The other brothers learned of the codicil in the days and months that followed.

The trial decision: suspicious circumstances and invalid codicil

Charlotte applied to prove the handwritten codicil as a valid testamentary instrument. At trial, the judge found that the circumstances surrounding its preparation and execution were suspicious both as to Elma’s knowledge and approval of its contents and as to her testamentary capacity on the date of execution. Those findings shifted the burden to Charlotte, as the party relying on the codicil, to prove on a balance of probabilities that Elma (1) knew and approved of the contents of the document and (2) had the necessary testamentary capacity when she signed it. On the knowledge and approval issue, the trial judge emphasized that Elma had previously used a lawyer for her wills, that only Charlotte benefited under the codicil, that the only instructions Mr. Heakes had ever received were for an equal division, and that Charlotte had already unsuccessfully tried to have a lawyer prepare a codicil giving her the home farm. He also considered Charlotte’s belief that she was entitled to the farm, her sense of relief afterward that “it was done,” the lack of involvement by other family members or advisers, and Elma’s ambiguous and emotional comments to Arthur the next day. On the capacity issue, the judge relied on the family physician’s clinical notes, as explained and elaborated on in testimony, to conclude that Elma had early dementia, mild cognitive impairment, confusion and anxiety that were relevant to her testamentary capacity. Although he did not make an affirmative finding that she lacked capacity, he held that these factors, taken together, created serious suspicion requiring Charlotte to affirmatively prove capacity. He concluded that Charlotte failed to discharge her burden on both knowledge and approval and capacity, and therefore held the handwritten codicil invalid, leaving the 2007 will’s equal division in place.

The appeal: alleged errors in assessing suspicion and legal tests

Charlotte appealed to the Ontario Court of Appeal. She argued that the trial judge had committed “processing errors” by misapprehending or ignoring evidence that should have reduced or eliminated the suspicion surrounding the codicil. She claimed he contradicted himself about Gerhard’s alleged wish that Charlotte have the home farm, erred in describing who drove Elma to the municipal office, and failed to engage appropriately with evidence more favourable to her. The Court of Appeal rejected these arguments. It held that there was no real contradiction in the judge’s finding that although Gerhard had, at times, expressed a desire for Charlotte to have the home farm, he had never acted on that wish in any formal will, which undercut the codicil’s description of this outcome as “always” his wish. The inconsistency over who drove to the municipal office was acknowledged but found to be minor and non-dispositive because the overall conclusion about Charlotte’s instrumental role was amply supported by other uncontested facts. The appellate court also concluded that the complaint about ignored or misunderstood evidence was, in substance, an attempt to reargue the case on the merits. A trial judge is not required to refer to every piece of evidence, and the reasons did not show any misunderstanding or failure to consider material evidence.

The appeal: knowledge and approval and the “magnitude” of the gift

Charlotte further argued that the trial judge applied the wrong legal standard when considering whether Elma knew and approved the codicil. She said he improperly required that Elma know the “magnitude” of the gift and, effectively, the precise or detailed value of the home farm, which she claimed is inconsistent with Ontario law that only requires a general understanding of the nature and extent of a testator’s property. The Court of Appeal disagreed with this characterization. Read in context, the trial judge’s concern was not that Elma lacked an exact dollar figure, but that the evidence did not show she appreciated that the home farm had increased so substantially in value that it comprised the bulk of her estate, or that gifting it to Charlotte would destroy the long-expressed goal of equal treatment among the children. Because knowledge and approval includes fully understanding what is being done by the will or codicil, the judge was entitled to conclude that, absent proof that Elma appreciated that she was effectively giving Charlotte most of her estate and creating a marked inequality, Charlotte had not established that Elma fully understood the codicil’s effect.

The appeal: medical evidence, capacity and reasons

Another strand of Charlotte’s appeal was that the trial judge placed undue weight on the doctor’s clinical notes and ignored his oral testimony, contrary to an agreement that the notes would not be used as opinion evidence. The Court of Appeal held that there was no such improper use: the physician did not disavow his notes; rather, he explained and elaborated on them in evidence, effectively incorporating the key observations and opinions. The trial judge was therefore entitled to rely on the notes and testimony together in describing Elma’s health, anxiety and cognitive issues. The appellate court also rejected the contention that the trial judge needed expert evidence to link Elma’s physical conditions and anxiety to her cognitive status; the evidence already gave a sufficient basis to treat those problems as relevant to her testamentary capacity. Charlotte’s argument that Elma’s impairment was “too mild” to matter was similarly rejected, because the trial judge was not finding incapacity outright; instead, he was deciding whether these circumstances, taken as a whole, justifiably raised suspicion and whether Charlotte had then affirmatively proved capacity. Finally, Charlotte claimed the trial judge’s reasons were insufficient, blurred submissions and findings, and lacked explicit credibility rulings. The Court of Appeal held that the reasons were clear, extensive and fully adequate to permit meaningful appellate review. This was not a pure credibility contest, and the central facts were largely not in dispute. The judge’s factual conclusions were apparent on the face of the reasons, and no reversible error was shown.

Outcome and costs order in favour of the brothers

In the result, the Court of Appeal dismissed Charlotte’s appeal at the close of her argument, without calling on the brothers to respond. The effect of that dismissal is that the trial judgment stands: the holograph codicil is invalid, and Elma’s estate, including the valuable home farm, continues to be governed by the 2007 lawyer-drafted will providing for equal division among all the children. On costs, although the parties had agreed on a figure, the Court of Appeal considered the agreed amount excessive and instead ordered Charlotte to personally pay the brothers’ costs of the appeal fixed at $100,000, inclusive of disbursements and applicable taxes, in favour of the four brothers as the successful parties.