/ Estates

Case Brief: Challenging a will because of a "material mistake of fact"

In Cavanagh et al. v. Sutherland et al., a mother had made a will disinheriting one of her six daughters. After the mother died, this daughter argued that the will was invalid because the mother's decision to disinherit her was "contingent on a material mistake of fact."


Joan Katherine Cavanaugh ("Ms. Cavanaugh") had six daughters. Ms. Cavanaugh made a will on June 14, 2014 specifying that her estate was to be left to five of her six daughters. The will expressly excluded one daughter, Carolynn, stating:

“I wish it to be recorded in this my last will that I have intentionally omitted my daughter Carolynn ... for whom I have made, in my view, adequate provision while I was alive”

Cavanagh et al. v. Sutherland et al., 2019 ONSC 2186 (CanLII), at para 1.

The will appointed three other daughters - Angela, Katharine, and Diane - as estate trustees. When these daughters applied for a certificate of appointment of estate trustees with a will, Carolynn filed an objection.

Carolynn originally objected on the basis that 2014 will was made under "suspicious circumstances", i.e. that Ms. Cavanaugh made the will under undue influence and lacked testamentary capacity. (para 5). Carolynn later objected on the grounds that her mother made the decision to disinherit her based on a material mistake of fact, rendering the will invalid.


Was the 2014 will valid?


Carolynn's argument, that her mother's decision to disinherit her was based on a material mistake of fact and therefore invalid, is not supported in law. J. Speyer J. noted that counsel for Carolynn "has advised that he is aware of no Ontario case in which this proposition has been applied" (para 17).

While this was enough to decide the case, J. Speyer J. went on to find additional facts in the interest of justice.

In 2011, Ms. Cavanaugh and her husband gave their daughter Carolynn $65,000. They viewed this payment as Carolynn's inheritence and the will was revised to reflect that.

Carolynn argued that Ms. Cavanaugh was mistaken about why the $65,000 payment was made, claiming that it was repayment for a loan she'd made to her father.

J. Speyer J. disagreed with this, and found that the $65,000 payment related to events that occurred in 1996. Essentially, Ms. Cavanaugh and her husband needed money and secured financing in a way that involved making Carolynn the joint-owner of their cottage. The parents were under the impression that Carolynn would have no legal interest in the property, whereas Carolynn later took the view that she had a legal interest in it. The $65,000 payment was made to resolve this dispute.


Ms. Cavanaugh intentionally disinherited her daughter. There was no material mistake of fact, nor would one be grounds for invalidating a will. The 2014 will was valid.

Patrick Hartford

Patrick Hartford

Patrick is the Founder of NoticeConnect.

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