Case Update – Ontario Court Dismisses Will Challenge, Orders Occupation Rent for Unauthorized Stay
Ontario Court Dismisses Will Challenge, Orders Occupation Rent for Unauthorized Stay
CASE: Canale v. Ziccardi, 2025 ONSC 607 (CanLII)
Canale v. Ziccardi, 2024 ONSC 5393 (CanLII)
The litigation began in 2017 when Rosemary Ziccardi filed a Guardianship Application for her mother, Elena Canale. In response, Jim Canale filed a cross-application for guardianship. On March 27, 2018, Justice Dunphy allowed Jim to amend his application to challenge Elena’s 2005 Will and Powers of Attorney, claiming she did not understand what she was signing. Although cross-examinations in the guardianship proceedings were completed, Elena passed away before any issues were decided by the court.
Following a pre-trial conference on October 8, 2024, Justice Faieta outlined the key issues for trial:
- Validity of Elena Canale’s Will – The court would determine whether the 2005 Will was valid, considering Jim Canale’s claims that his mother did not understand its contents and that it was the result of undue influence. These allegations were referenced in Jim’s affidavit dated February 24, 2022 and his pre-trial conference form.
- Occupation Rent – The court would decide whether Jim Canale should pay rent for his unauthorized occupation of Crestwood, the family home, after Elena’s death.
Jim was ordered to vacate Crestwood by November 30, 2024, but failed to comply, leading Justice Faieta to find him in contempt of court.
Prior to April 2024, Jim was represented by legal counsel, but as of April 18, 2024, he chose to represent himself and remained self-represented throughout the trial.
The Honourable Justice Gilmore issued a ruling that disposes of the main issues in the application. This decision upholds the validity of the 2005 Will of Elena Canale, dismisses the Applicant’s challenge, and orders him to vacate the family property. Additionally, the court requires the Applicant to pay occupation rent for his unauthorized stay, ensuring that the estate and its beneficiaries are not further disadvantaged.
Giacomoantonio “Jim” Canale was surprised to learn that his mother’s 2005 Will did not leave him her home (Crestwood), even though her two previous Wills had. He argued that his mother had orally promised the home to him.
Jim challenged the validity of the 2005 Will, claiming that his mother did not have sufficient English proficiency to understand and approve its contents. He also alleged suspicious circumstances surrounding its execution.
His sister, Rosemary Ziccardi, the Estate Trustee, defended the will’s validity. She argued that their mother had lived in Canada since age 18, conducted daily affairs in English, and understood estate planning concepts. Rosemary maintained that Elena freely signed the 2005 Will, and there was no undue influence or duress.
Rosemary also sought occupation rent from Jim for living at Crestwood rent-free since their mother’s death.
Justice Gilmore dismissed Jim’s application, ruling that Elena understood and approved the 2005 Will. It found no undue influence, duress, or suspicious circumstances. Jim was ordered to pay occupation rent to the estate from the date of death, with some deductions for his contributions.
The Law
Under Ontario estate law, a will is considered valid if it meets the formal requirements of the Succession Law Reform Act (SLRA), R.S.O. 1990, c. S.26. It must be in writing, signed by the testator, and witnessed by two individuals who are not beneficiaries. Once a will is properly executed, there is a presumption of validity, meaning the burden shifts to the challenger to prove suspicious circumstances, undue influence, or lack of knowledge and approval.
A will may be challenged based on suspicious circumstances, such as the testator’s lack of understanding due to a language barrier, unexplained changes from prior wills, or possible external influence. According to Vout v. Hay, [1995] 2 S.C.R. 876, if a testator executes a will properly and understands its contents, courts presume knowledge and approval unless the challenger presents strong evidence to the contrary. In this case, the court ruled that Elena Canale understood and approved the 2005 Will, rejecting Jim’s claims that she lacked English proficiency.
To invalidate a will based on undue influence, the challenger must provide clear and compelling evidence that the testator was coerced into making decisions against their wishes. Mere persuasion or influence is not enough. Since Jim failed to provide any direct evidence of undue influence, the court upheld the 2005 Will.
Jim also argued that proprietary estoppel applied because his mother made verbal promises that he would inherit the home, and he relied on those promises to his detriment. Under Cowper-Smith v. Morgan, 2017 SCC 61, proprietary estoppel requires a clear promise, reliance on that promise, and a resulting detriment. The court found that Jim failed to prove these elements, as verbal promises are inadmissible when a written will states otherwise, and he suffered no real financial loss while living at Crestwood rent-free.
Since Jim continued to occupy the estate’s property without legal entitlement, the court applied occupation rent, an equitable remedy based on unjust enrichment. Under Gray v. Siiman, 2024 ONSC 3756, a person who benefits from unauthorized occupation of estate property must compensate the estate for lost rental income. The court determined a reasonable market rental rate for Crestwood using expert appraisals and ordered Jim to pay occupation rent from July 2019 to January 2025, with deductions for his contributions.
Jim was previously ordered to vacate by November 30, 2024, but he refused. As a result, the court issued a Writ of Possession, allowing the estate trustee to remove him from the property. The court extended the deadline to March 14, 2025, after which Jim will be forcibly removed by the Sheriff if he does not leave voluntarily.
