ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tony Melcher, Kelly Courchesne, and Natalie Lalonde
Applicants
– and –
Patricia Melcher, and Ron Carty
Respondents
COUNSEL:
Taayo Simmonds, for the Applicants
Sean Taylor, for the Respondents
Sean Dewart, for the Respondent’s counsel
HEARD: January 27, 2026
REASONS FOR DECISION
SOMJI J
Overview
1The Respondent Patricia Melcher is 82 years of age. Her children, the Applicants Tony Melcher, Kelly Courchesne, and Natalie Lalonde became concerned about her cognitive decline in 2023. Consequently, they arranged for her to enter into powers of attorney for property and personal care in December 2023, and a will in January 2024. Ms. Melcher’s common law partner of 25 years, Respondent Ron Carty, had knowledge of these activities.
2Following the execution of these testamentary documents, the Applicants learned that Mr. Carty had attended with their mother to another law office and executed a new set of testamentary documents in October 2024. These documents transferred decision-making powers for care and personal property for Ms. Melcher from her children to Mr. Carty and added Mr. Carty as an additional and equal beneficiary in Ms. Melcher’s will.
3The Applicants were taken aback by Mr. Carty’s conduct. They believed that their mother did not have capacity to execute the October 2024 testamentary documents. As a result, they brought an Application in November 2024, for an order to have Ms. Melcher undergo an ongoing and retroactive capacity assessment. If the capacity assessment confirmed their concerns, the Applicants intended to seek orders declaring the October 2024 Documents to be invalid.
4Ms. Melcher opposed the application for a capacity assessment. Mr. Carty participated in the litigation but did not take a position on the request for a capacity assessment.
5On November 24, 2025, I ordered Ms. Melcher to undergo a capacity assessment: Melcher v. Melcher, 2025 ONSC 6567 (“Decision”). The Decision outlines the litigation history and also makes findings on Ms. Melcher’s capacity based on the Application and Respondent records filed. I adopt those factual findings here and in some instances, make references to them.
6Dr. Fiona Menzies conducted a capacity assessment on November 18, 2025, and released her 32-page report on November 28, 2025 (“Dr. Menzies’ Report”). Dr. Menzies concluded that from July 2024 onwards, Ms. Melcher has been incapable of managing her property; managing her personal care; granting a new continuing power of attorney for property; instructing counsel; or possessing testamentary capacity. Dr. Menzies did find that Ms. Melcher remained capable of granting a power of attorney for personal care, but that she would have been highly vulnerable to even a low level of influence in making any such designation since July 2024.
7This decision addresses the consequential orders and declarations that flow from Dr. Menzies’ capacity assessment and Report. The Applicants seeks the following:
[a] Declarations that Ms. Melcher does not have capacity to manage her personal care and property and did not have such capacity since April 2024 pursuant to ss. 6 and 45 of the Substitutes Decisions Act 1992, SO 1992, c. 30 (“SDA”);
[b] Orders to invalidate the Powers of Attorney for Property, Powers of Attorney for Personal Care, and Will executed on October 10, 2024, by the law firm Bradly Hiscock McCracken LLP on grounds that Ms. Melcher did not have testamentary capacity at the time the documents were executed. These documents are referred to as the “October 2024 Documents” or “October 2024 POA” or “October 2024 will”.
[c] Declarations that the Powers of Attorney for Property and Personal Care, and Will executed on December 21, 2023, and January 2, 2024, in the offices of Howard Kelford and Dubois LLP constitute valid testamentary documents. These documents are referred to as the Original Testamentary Documents” or separately as the “Original Will” and “Original POAs”.
[d] Declarations that any decisions related to Ms. Melcher’s financial accounts and life insurance polices made pursuant to the October 2024 POA for property be declared null and void; and
[e] Declaration that Ms. Melcher does not have capacity to instruct counsel and an Order that the Applicants be appointed her litigation guardian.
8Upon determination of the above, the Applicants seek that the issue of costs for this litigation against Mr. Carty, Ms. Melcher, and personally against Ms. Melcher’s counsel, Sean Taylor, pursuant to Rule 57.01 Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) be adjourned for hearing to a later date.
9Ron Carty does not oppose the relief requested. As discussed further below, this litigation has strained the relations between him and the Applicant children. Sadly, Ms. Melcher had a heart attack in December 2025 requiring the family to make decisions around her future care and living conditions. Mr. Carty has moved out of Ms. Melcher’s home and arrangements are being made for Ms. Melcher to move into a retirement home. Mr. Carty has now relinquished any involvement in property or personal care decisions involving Ms. Melcher. Notwithstanding these tensions, the parties are encouraged to facilitate ongoing contact between Mr. Carty and Ms. Melcher given their long-term common law relationship and their close bond to one another.
10The position of Ms. Melcher and her Counsel Sean Taylor is not so clear. Sean Taylor does not dispute the findings of the capacity assessment, and his instructions at the motion hearing were to not oppose the relief requested. Mr. Taylor did not file any materials on behalf of Ms. Melcher opposing the relief requested.
11However, during the motion hearing, Sean Taylor’s counsel Mr. Dewart Gleason who has been retained to address Rule 57 costs, raised two issues: first, that this court should not and need not make an order finding that Ms. Melcher is unable to instruct counsel and was unable to do so since July 2024; and second, that this court does not have jurisdiction under the Substitutes Decisions Act, to invalidate a will while the testator Ms. Melcher is still alive. This argument was raised for the first time on January 27, 2026, almost over 14 months since the commencement of this litigation.
12The issues to be decided are:
[a] Is Patricia Melcher incapable of making decisions for property and personal care within the meaning of ss. 6 and 45 SDA, and if so, since what date?
[b] Are the October 2024 Documents invalid for lack of testamentary or other incapacity, and if so, what declaratory relief may flow from that finding?
Issue 1: Whether Patricia Melcher is incapable of making decisions for property and personal care pursuant to ss. 6 and 45 SDA, and if so since what date?
13Sections 6 and 45 of the SDA state:
6A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
45A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or other own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequence of a decision or lack of decision.
14The onus is on the Applicants to establish Ms. Melcher’s incapacity. They argue that Dr. Menzies’ Report along with the other evidence presented throughout this litigation supports a finding that Ms. Melcher has lacked capacity to manage her personal care and property since July 2024 and seek a declaration for such finding.
15The court can rely on capacity assessments to assist in making findings under the SDA: Adam v Adam, 2023 ONSC 3093 at paras 20-22. The Defendants do not dispute the qualifications, conduct, scope, or findings of Dr. Menzies. The Defendants also had input into the selection of doctors who would conduct the capacity assessment. Having reviewed Dr. Menzie’s CV and Report, I am satisfied that she is qualified to provide an expert opinion on the retroactive and ongoing capacity of Ms. Melcher.
16As already noted, Defendant Ron Carty does not oppose the relief sought in this regard. He does not dispute the findings of Dr. Menzies’ Report.
17Sean Taylor, Counsel for Ms. Melcher states that his client Ms. Melcher has instructed him not to oppose the application any further.
18In her Report, Dr. Menzies found that Ms. Melcher has been incapable of managing her property as defined under s. 6 SDA since July 2024. Dr. Menzies found that during the capacity assessment of November 18, 2025, Ms. Melcher was unable to manage her property for several reasons: 1) she was unaware of her current financial situation which affected her ability to make financial decisions; 2) she showed an inability to plan for expected expenses and a lack of insight into her limitations leading her to not seek help when she needed it; and 3) she did not appreciate the consequences a financial decision may have on her financial situation.
19Dr. Menzies arrived at her findings from Ms. Melcher’s cognitive testing, reviewing medical notes, and other observations and indicia within the assessment. For example, Ms. Melcher knew she had a bank but didn’t know how much money might be in it or that someone at the bank could help her determine that. She was unable to make a budget, understand the scope of her monthly expenses, estimate or process a major financial decision such as replacing the roof of her house, and understand the implications of such financial decisions.
20Dr. Menzies went on to find that Ms. Melcher likely did not have capacity to manage her property from July 2024 onwards because the deficits she presented in November 2025 – poor short-term memory and executive function – were also present when she was first seen by Dr. Becker in April 2024. While the deficits were to a lesser degree in 2024, Dr. Menzies opined that they were still significant deficits. This was also borne out by the fact that since that time, other than being able to buy things in a store for herself, Ms. Melcher appeared to receive considerable assistance in managing her finances from others.
21Dr. Menzies similarly found that on November 18, 2025, Ms. Melcher lacked capacity to manage her personal care as defined by s. 45 SDA, due to 1) her lack of awareness of her current medical issues; and 2) her inability to appreciate that she had a medical condition that carries consequences for her daily life. During the assessment she demonstrated short-term memory impairment and was not oriented to place. While she was in her home, she thought she was in the library. She laughed off any concerns about memory issues, believed she was still able to drive, and did not understand that she was taking medications. When asked at another time what medications she was taking, she pointed to a pair of glasses and said “I take these” demonstrating an inability to recognize a visually familiar household object.
22Dr. Menzies found that Ms. Melcher would have struggled from April 2024 onwards with the ability to appreciate her cognitive limitations from dementia. She showed no insight into having been diagnosed with moderate dementia by Dr. Becker in April 2024 or of her follow-up visits to have her memory assessed in May and June 2025. Dr. Menzies noted that her spouse, Ron Carty, and two of the children Kelly and Natalie were at the April 2024 appointment with Dr. Becker and did not dispute the diagnosis. Her family had started noticing symptoms in the preceding year.
23Dr. Menzies found that during her assessment, Ms. Melcher continued to lack awareness of her dementia, demonstrating “anosognosia.” Anosognosia is a term that refers to an individual’s inability to recognize the symptoms of an illness that they have which is very common in Alzheimer’s dementia. It typically occurs early in the disease and does not improve. It is thought to be related to memory impairment and executive dysfunction. Given this lack of insight into her medical issues and the implications of having dementia, Dr. Menzies concluded it would have been highly unlikely that Ms. Melcher could have developed a plan for her care needs based on her medical issues. Therefore, Dr. Menzies opined that Ms. Melcher was likely unable to manage her personal care from July 2024 onwards.
24Dr. Menzies’ findings are consistent with the observations of family members, physicians, and Ms. Melcher’s own performance in examinations related to this litigation. As set out in the following paragraphs of my Decision, this includes: one, the Applicants’ observations of their mother’s cognitive decline in 2024 and 2025 (at paras 24-25); two, Mr. Carty’s observations of changes in Ms. Melcher’s cognition since the summer of 2023, and the worsening of her short-term memory (at para 32); three, Dr. Becker’s and Dr. Shriver’s evidence regarding Ms. Melcher’s cognitive decline which caused them to recommend that someone else manage her personal and financial affairs (at para 30); and four, Ms. Melcher’s cross-examination of April 8, 2025, where she was confused, disoriented in time and place, unable to respond to basic questions, and did not appreciate the purpose of the examination or the legal proceedings she was involved in (at paras 29-30).
25Dr. Menzies’ finding of Ms. Melcher’s retroactive incapacity for personal care and property dates back to July 2024. However, Dr. Menzies noted in her Report that Ms. Melcher’s lack of insight into her own cognitive limitation dates back to April 2024 when Dr. Becker first diagnosed her and put her at risk of engaging in decision-making that was beyond her cognitive abilities. Dr. Menzies found that Ms. Melcher’s “preserved social graces and most people’s wish to respect her autonomy” suggests that the true degree of her limitations was likely often not detected. This set her up to be in a situation where it would have been very concerning for Ms. Melcher to manage her property, personal care, make new POA documents, hire a lawyer, and make a will.
26For these reasons, I find that the Applicants have met their onus in establishing that Ms. Melcher is incapable of managing her property and her personal care and furthermore, that she has been unable to do so since at least July 2024. As a result, Ms. Melcher requires decisions to be made for her.
Issue 2: Are the October 2024 Documents invalid for lack of incapacity?
27The primary issue in this litigation has been the validity of the October 2024 Documents. The Applicants argue that at the time Ms. Melcher entered into the October 2024 Documents at the offices of Bradely Hiscock McCrackeln LLP, she lacked testamentary capacity. Having now received the findings from Dr. Menzies’ retroactive and ongoing capacity assessment and on the basis of other evidence of Ms. Melcher’s incapacity as presented in this litigation, the Applicants seek the following declarations from the court.
28First, the Applicants seek a declaration that the October 2024 POAs are invalid and that the Original POAs be declared to be in full force and effect. This will ensure the Original POAs executed by Ms. Melcher on December 21, 2023, appointing the Applicants as her caregivers for both personal care and property are not overridden and remain in force to allow the Applicants to manage Ms. Melcher’s ongoing care. The Applicants also seek an order appointing them guardians of Ms. Melcher’s personal care pursuant to s. 55 SDA.
29Second, the Applicants seek declarations that changes made to Ms. Melcher’s life insurance polices and investment accounts since April 2024, such as changes in beneficiary designations or the opening of new investment accounts, be declared null and void. If Ms. Melcher lacked retroactive capacity since the spring of 2024, and financial decisions were made by someone other than her children as per the Original POA for property, they argue that those decisions should be annulled.
30Third, the Applicants seek pursuant to Rule 14.05(3) and the decision in Palichuk v Palichuk, 2023 ONCA 116, that the October 2024 will which made Mr. Carty an equal beneficiary with the children be declared invalid as Ms. Melcher lacked testamentary capacity at the time the will was executed.
31Fourth, the Applicants seek that they, as her POAs for property, be appointed Ms. Melcher’s litigation guardian given her cognitive deficits and incapacity to instruct counsel.
32In his affidavit of January 22, 2026, Ron Carty states he is not opposing the relief requested. His counsel argues that while Mr. Carty contest facts related to his role in how Ms. Melcher came to sign the October 2024 Documents and his role in this litigation for the purposes of any future costs assessment against him, he is not opposing the relief sought.
33Sean Taylor maintains his position that his client Ms. Melcher is not opposing the relief sought by the Applicants.
34Sean Taylor’s counsel, Mr. Dewart, however, takes a different position. While he does not take issue with any of the declaratory relief sought as it relates to the invalidity of the October 2024 POAs, he argues that this court has no jurisdiction to declare the October 2024 will invalid.
35In assessing the validity of the October 2024 Documents, I consider below the following:
[a] Dr. Menzies’ findings re Ms. Melcher’s testamentary capacity since April 2024;
[b] Dr. Menzies’ findings re Ms. Melcher’s capacity to execute a new POA for property since July 2024;
[c] Ms. Melcher’s capacity to execute a new POA for personal care since July 2024, and whether she would have been vulnerable to influence;
[d] Ms. Melcher’s incapacity to instruct counsel since July 2024;
[e] Other evidence of Ms. Melcher’s capacity since April 2024, including during the course of this litigation; and
[f] The circumstances under which Ms. Melcher came to sign the October 2024 Documents.
36Finally, I address the arguments raised by Mr. Dewart, counsel for Sean Taylor, regarding the court’s jurisdiction to make a declaration of invalidity of a will while the testator is still alive.
A. Dr. Menzies’ findings re Ms. Melcher’s testamentary capacity
37In order to have testamentary capacity, the court must be satisfied that Ms. Melcher: a) understands the nature of a will; b) recollects the nature and extent of her assets; c) understands the extent of what she is giving under the will; d) has knowledge of persons who have a reasonable claim to be beneficiaries; and e) understands the impact the distribution of assets will have: Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043, at para 104.
38Dr. Menzies considered the above-noted criteria along with two other criteria which she referenced as the Banks vs Goodfellow criteria for testamentary capacity, namely that e) Ms. Melcher as testator was free of any delusion that would influence the disposition of assets; and f) that she has the ability to clearly and consistently express her wish for the disposition of her assets: Shulman KI, Cohen CA, Kirsh FC, Hull IM, Champine PR. Assessment of testamentary capacity and Vulnerability to Undue Influence, American Journal of Psychiatry. 2007; 164(5):722-727.
39According to Dr. Menzies, Ms. Melcher was unable to meet several criteria for testamentary capacity when assessed on November 18, 2025. She was unaware of her assets. She identified her car as an asset even though she no longer had a car. She vastly underestimated the worth of her house. She understood a will as something setting out what you want to leave to your loved ones but was initially unsure she had one. Ms. Melcher did not know that her children would expect to be beneficiaries of her will. If she had a will, she believed she would have left everything to her husband, referring likely to her common law Mr. Carty. When probed about having two wills and the distributions in each one, Ms. Melcher could not follow the changes. She then changed her wish to have everything distributed equally between her children and her spouse demonstrating that she did not recognize that she had prepared two wills and did not have a consistent plan for the disposition of her assets. For all these reasons, Dr. Menzies found that Ms. Melcher did not have testamentary capacity on November 18, 2025.
40Relying on the same criteria, Dr. Menzies opined that Ms. Melcher would not likely have had testamentary capacity from July 2024 onwards. She found that as a consequence of Ms. Melcher’s serious deficits with executive function and short-term memory since April 2024, combined with her own limited insight into her issues, she would have had difficulty with decision-making since that time.
41With respect to Ms. Melcher’s decline in cognition, executive function, and short-term memory since at least early 2024, Dr. Menzies considered the following evidence:
[a] the Applicants and Mr. Carty’s observations of Ms. Melcher’s cognitive decline;
[b] Dr. Becker’s diagnosis in April 2024 that Ms. Melcher had moderate dementia and issues with cognitive function;
[c] that Dr. Becker found Ms. Melcher’s cognitive decline was significant enough to warrant that she be restricted from driving;
[d] that Ms. Melcher had no insight into her own cognitive limitations and continued to drive until she met with Dr. Becker;
[e] Dr. Schriver’s finding in February 2024 that Ms. Melcher’s had short-term memory issues;
[f] that Ron Carty was concerned as early as June 2023 about Ms. Melcher’s hearing which in retrospect Dr. Menzies opined may have been a problem related to her short-term memory;
[g] anecdotal reports that Ms. Melcher needed Mr. Carty in April 2024 to help make decisions about things like what to eat and her increasing dependence on Mr. Carty to answer questions on her behalf; and
[h] that Ms. Melcher’s cognition and short-term memory continued to worsen with time as reflected in her progressively lower cognition test scores (MoCA tests).
42As a consequence of these cognitive deficits, Dr. Menzies found Ms. Melcher would have struggled to recall and understand her assets and would have had trouble appreciating the implications of how she distributed her assets in any will. Finally, she found that due to Ms. Melcher’s memory impairment, she would not have recalled her previous will and would have struggled to be consistent with how she wanted to distribute her assets.
B. Dr. Menzies’ findings re Ms. Melcher’s capacity to execute a new POA for property
43Pursuant to s. 8 SDA, for a person to be found to be capable of granting a continuing power of attorney for property, the court must be satisfied that the person:
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse their authority.
44Given Ms. Melcher’s deficits in executive function, short-term memory impairments, and cognitive decline since April 2024, Dr. Menzies opined that Ms. Melcher did not likely have capacity to designate a new POA for property from July 2024 onwards. She found that Ms. Melcher would have struggled to recall exactly what property she owned. Furthermore, her lack of insight into her own limitations would have meant that she would not have sought help from other sources if she was unclear of financial facts such as the exact nature of her assets.
45Dr. Menzies also found that because of Ms. Melcher’s prominent issues with executive function, she would have struggled with the last two components of the test under s. 8 SDA, namely, the ability to understand that she could suffer financially if a POA mismanages her property and that a POA could act fraudulently in their dealings with her property. Both of these requirements would require her to appreciate the consequences of a decision which she would have had difficulty doing given her cognitive deficits. For all these reasons, Dr. Menzies concluded that Ms. Melcher did not have capacity to execute a new POA for property since July 2024.
C. Dr. Menzies’ finding re Ms. Melcher’s capacity to execute a new POA for personal care since 2024 and whether she would have been vulnerable to influence
46Dr. Menzies arrived at a different conclusion regarding Ms. Melcher’s capacity to execute a new POA for personal care from July 2024 onwards. She noted that the ability to designate a POA for personal care is different than the capacity to designate a POA for property because it does not require an individual to appreciate consequences of decisions to the same degree.
47Section 47 SDA states that “A person is capable of giving a power of attorney for personal care if the person, (a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and (b) appreciates that the person may need to have the proposed attorney make decisions for the person.
48As Dr. Menzies explained, this provision does not require a person to have detailed recall of financial matters or be able to discern hypothetical situations and outcomes. Dr. Menzies found that during her assessment, Ms. Melcher was able to identify a person who cared about her, and she knew that if she were unwell, that person could make decisions for her care. Consequently, Dr. Menzies found that Ms. Melcher was likely able to designate a new POA from July 2024 onwards but went on to add that Ms. Melcher would have been vulnerable to undue influence when she made such a decision because of her cognitive deficits.
49In this regard, Dr. Menzies opined that Ms. Melcher was particularly vulnerable to undue influence form her common law spouse Mr. Carty. She found that this was the case in November 2025, when she conducted her assessment and likely the case since July 2024, as Mr. Carty was living with her and appeared to be her primary caregiver. Dr. Menzies noted that Mr. Carty was the person to whom Ms. Melcher turned to for advice. During the assessment she observed that Ms. Melcher became distressed when Mr. Carty was not present and attempted to defer questions to him rather than answer independently. I would add that these behaviours were also apparent during Ms. Melcher’s cross-examination where if she could not understand the questions asked by counsel, including where she lived, she would turn to Mr. Carty for assistance. I reference examples of this in my Decision.
50Dr. Menzies noted that her finding that Ms. Melcher would have been vulnerable to undue influence was corroborated by Dr. Becker’s medical notes of April 2024, wherein he stated that Ms. Melcher “is increasingly relying on her partner [Mr. Carty] to answer questions on her behalf … she requires instructions to be written down and her daughters report that she is deferring almost all decision-making to her partner including simple things such as what to eat.”
51Dr. Menzies noted that Ms. Melcher had a special relationship with Mr. Carty as he was her common law spouse of many years, and he was in a in a position of trust and confidence for Ms. Melcher. However, her cognitive deficits from dementia, executive dysfunction, and memory impartment put her at very high risk of being influenced by Mr. Carty. She believed that Ms. Melcher would have been highly vulnerable to undue influence from at least April 2024.
D. Ms. Melcher’s capacity to instruct counsel since 2024
52Dr. Menzies found that Ms. Melcher did not have capacity to instruct counsel since July 2024. Hence, in addition to lacking testamentary capacity, Ms. Melcher would have lacked capacity to instruct counsel at the time she executed the October 2024 Documents.
53As addressed in my Decision at paragraph 8, it was on/around July 4, 2024, that Ms. Melcher’s daughter learned that Mr. Carty had taken Ms. Melcher to see Jerry Hiscock of the law firm Hiscock & McCracken LLP for the purpose of issuing new testamentary documents. Counsel for Ms. Melcher’s former law firm contacted Mr. Hiscock, raised issues about Ms. Melcher’s capacity, and suggested that she undergo a capacity assessment before executing any new documents. Mr. Hiscock initially agreed and scheduled a capacity assessment for August 21, 2024, at Ms. Melcher’s home. However, Mr. Carty locked Ms. Melcher and himself in the bedroom and refused to let her participate in the capacity assessment. Thereafter, Mr. Hiscock changed his position and proceeded to have Ms. Melcher execute the October 2024 Documents.
54Dr. Menzies arrived at her finding that Ms. Melcher lacked capacity to instruct counsel since July 2024, based on the criteria set out in Constantino v Constantino, 2016 ONSC 7279 at para 47. These factors include a) Ms. Melcher’s ability to understand what she asked her lawyer to do for her and why; b) her ability to understand and process information and advice presented by a lawyer; and c) whether she appreciate the advantages, drawbacks, and potential consequences associated with the options she is presented by her lawyer.
55According to Dr. Menzies, Ms. Melcher did not recall ever meeting her lawyer, Sean Taylor, nor was she able to identify why she would have hired him. She did not recall ever receiving legal advice from him. She affirmed that she never mentioned anything about a POA for property to Mr. Taylor. She was unaware for what reason she currently needed a lawyer. It was apparent to Dr. Menzies that Ms. Melcher had no recollection of this legal proceeding.
56Dr. Menzies noted that the ability to instruct counsel requires a high level of cognition and importantly, the ability to appreciate the consequences of decisions. She found that since April 2024, Ms. Melcher had been experiencing issues with executive function, short-term memory impairment, and serious cognitive deficits which would render decision-making difficult. This was illustrated in Dr. Becker’s note of April 2024, wherein the doctor stated that Ms. Melcher’s daughter reports that Ms. Melcher defers almost all decision-making to her partner. Dr. Becker was sufficiently concerned about Ms. Melcher’s executive function and lack of insight into her deficits that he reported her to the Ministry of Transportation to stop her from driving.
57For all these reasons, Dr. Menzies concluded that it would have been challenging for Ms. Melcher to decide to hire a lawyer and enter into new testamentary documents after April 2024. She also did not believe that Ms. Melcher would have had the capacity to appreciate the concerns her family had regarding the new POA documents and wills she signed in October 2024 the ability to instruct her lawyer about her children’s claim that she lacked capacity.
E. Other evidence of Ms. Melcher’s capacity since April 2024
58Dr. Menzies’ findings are corroborated by other evidence presented during the course of this litigation. As noted at paras 24-25 of my Decision, the Applicants observed Ms. Melcher’s memory and cognitive capacity start to decline in the summer of 2023. This cognitive decline was also observed by Mr. Carty and his daughter during a winter holiday to the Dominican Republic. The Applicants observed Ms. Melcher’s cognitive function continue to decline throughout 2024 and 2025. Ms. Melcher was unable to remember appointments; unable to explain the purpose of visits including to see lawyer Jerry Hiscock with Mr. Carty; confused about familiar people and places; unable to differentiate between various family members; and was observed to be increasingly unkept.
59Furthermore, as noted at paragraphs 26-28 of my Decision, there is evidence of Ms. Melcher’s memory loss in her affidavit and subsequent cross-examination of April 8, 2025. Ms. Melcher states in her affidavit that she attended a law firm with Mr. Carty in December 2023, following which she signed the Original Testamentary Documents but has no recall of the meeting with the lawyer. During her virtual cross-examination, she was confused, disoriented in time and place, and unable to answer very basic questions. Multiple examples of this are set out at paragraph 27 of my Decision.
60In addition, Mr. Carty conceded in his previous affidavits filed in this litigation that Ms. Melcher experienced cognitive issues. He corroborated the children’s evidence that Ms. Melcher forgets details of discussions or events and forgets where items are. He also acknowledged her short-term memory had worsened over time.
61It was also apparent from the evidence filed during this litigation that that Ms. Melcher became increasingly dependent on Mr. Carty for most financial decisions. At paragraphs 40 to 44 of my Decision, I highlight that Ms. Melcher was unaware of various expenses or that Mr. Carty was trying to sell her vacation trailer and left the management of her finances and payment of bills almost entirely to Mr. Carty.
62Consistent with Dr. Menzies’ findings that Ms. Melcher would be at “high risk of being influenced” by Mr. Carty, I concluded at paragraph 48 of my Decision, that there was sufficient evidence to indicated that Ms. Melcher is not acting independently with respect to her financial affairs and that she appears to be under Mr. Carty’s influence and control.
F. The circumstances by which Ms. Melcher came to sign the October 2024 Documents;
63S. 10 SDA states that a POA may be declared invalid through undue influence even where the grantor meets the formal capacity threshold at the time of execution.
64Here, there is evidence from Dr. Menzies that Ms. Melcher suffers from moderate Alzheimer’s dementia since April 2024, with impaired executive function, memory deficits, and anosognosia, rendering her highly vulnerable to undue influence. Dr. Menzies found that the onset of her dementia, likely predated the April 2024 diagnosis by several years.
65When Mr. Carty took Ms. Melcher to see Jerry Hiscock in the spring and early summer of 2024, he would have been well aware of Ms. Melcher’s dementia and cognitive decline. He was living with her. He had himself, alongside his daughter, reported concerns to Ms. Melcher’s children. Mr. Carty was also present at Ms. Melcher’s meeting with Dr. Becker and would have been aware of Dr. Becker’s dementia diagnosis and that concerns about her cognition were sufficiently serious that Dr. Becker had her stop driving.
66There is no evidence that Ms. Melcher initiated the visit to Mr. Hiscock’s office for the purpose of issuing new testamentary documents particularly given she had just signed the Original POAs in December 2023 and the Original will in January 2024. When Ms. Melcher’s daughter asked her in the spring of 2024 about the visits with a lawyer she did not even recall such visits.
67Rather, the evidence indicates that it was Mr. Carty who took Ms. Melcher to see Mr. Hiscock. In February 2024, Mr. Carty contacted Scott Murray, a lawyer he knew and trusted, to have Ms. Melcer execute new testamentary documents rather than return to Ms. Melcher’s existing lawyer, Bradley Samuels, with whom she had signed the Original Testamentary Documents. When Mr. Murray’s firm declined to act, he took Ms. Melcher to see Mr. Hiscock, his own lawyer, and with whom he had a prior solicitor-client relationship with for over 40 years.
68In his cross-examination, Mr. Carty admitted that Ms. Melcher did not independently provide instructions to counsel. He claims he spoke on her behalf upon her request. He had a list of questions that he had prepared before the meeting. He also controlled the flow of questions during the meeting with counsel and acknowledged that Ms. Melcher deferred to him throughout the process. Mr. Carty’s involvement was not one of just support and assistance, but of control. I find in these circumstances, that the October 2024 Documents were procured as a result of both Ms. Melcher’ incapacity as well as undue influence: s. 10 SDA; Gironda v Gironda et al. 2013 ONSC 4133 at paras 71-75.
69By way of explanation of what transpired in the spring of 2024, Mr. Carty attests in his most recent affidavit of January 22, 2026, that Ms. Melcher had consistently told him she wanted him involved in her decision-making and that she was upset with how her children had treated them both. He attests that he believed Jerry Hiscock and Sean Taylor when they stated that Ms. Melcher could instruct them.
70Nonetheless, it was Mr. Carty who took Ms. Melcher to see new counsel in the spring of 2024, and moreover he did so surreptitiously, without advising the Applicant children. Mr. Carty would have known at the time that Ms. Melcher had undergone various medical visits for memory and cognition and had been diagnosed with dementia. Furthermore, when Mr. Hiscock arranged for Ms. Melcher to have a capacity assessment on August 21, 2024, upon request of her former lawyer, Mr. Carty obstructed that assessment by locking himself and Ms. Melcher in the bedroom and refusing to let her participate.
71Mr. Carty attests that on April 14, 2025, after he observed that Ms. Melcher could not articulate why she was being examined and thought her deceased daughter was alive, he conveyed to the Applicants that he would not oppose the Applicants’ request that Ms. Melcher undergo a capacity assessment. I note, however, that this litigation was initiated on November 29, 2024.
72I appreciate that Mr. Carty cares deeply for Ms. Melcher and that he may not have intended any harm. However, I find his conduct contributed to the issuance of the October 2024 Documents and the necessity of the litigation that has flowed from it.
G. Jurisdiction to declare a will invalid
73Counsel for Sean Taylor argues that neither the Substitutes Decision Act nor Rule 14.05(3) provides the court jurisdiction to declare a will invalid while the testator is still alive.
74It is disconcerting that this argument was never raised by any of the Defendants prior to January 29, 2026, notwithstanding it was not known to all since November 2024 that the purpose of the request for an ongoing and retroactive capacity assessment was to determine if a further order should be sought to invalidate the October 2024 Documents, including the will. Had the argument been raised earlier, I find it could have narrowed the scope of the litigation and possibly assisted in facilitating settlement.
75I agree that there is no provision in the Substitutes Decisions Act which empowers a court invalidate a will.
76Rule 14.05(3)(a) states that “an application may be brought for the advice and direction of the court...on a question affecting the rights of a person in respect of the administration of the estate of a deceased person.” Counsel Dewart argues that given Ms. Melcher is still alive, I am precluded from making a declaration invalidating the will pursuant to this Rule.
77The issue of whether a court may determine the validity of a will during the testator’s lifetime was addressed by the Ontario Court of Appeal in Palichuk v Palichuk, 2023 ONCA 116. In that case, the daughter of the testator sought, pursuant to Rule 14.05(3)(a) and the Substitute Decisions Act, a declaration of invalidity of her mother’s will and powers of attorney on the grounds that her mother lacked capacity to execute them. However, unlike in this case, the capacity assessor found that the testator, the mother, had testamentary capacity, capacity to manage her care and property, and capacity to execute new POAs and/or a will.
78The Court of Appeal found that there are strong public policy reasons not to permit a challenge to a will prior to the death of a testator. A testator may decide to change their will. It may not be known what assets will remain or what beneficiaries might be alive at the time of the testator’s death. Consequently, to allow as a common practice the adjudication of a will prior to the death of the testator risks the courts being inundated with estate litigation that is hypothetical with the potential for re-litigation after the testator’s death: at para 71.
79However, the Court of Appeal went on to find noted that there have been some circumstances where pre-death validity determinations have been upheld, namely where:
i. the proceeding is not a direct will challenge, but the validity of the will arises incidentally as part of another live issue requiring determination; and
ii. the testator, although alive, lacks and is not expected to regain the capacity to make or change a will; at paras 69-70.
80I find those factors are present here. This Application was initiated because of the concern that Ms. Melcher had in place two sets of testamentary documents and that the second set was executed at a time when she had cognitive deficits and likely a lack of capacity. With her declining health, care decisions would have to be made and there was, in effect, two powers of attorney executed within a period of a year naming different people responsible for her care. Furthermore, the second set of testamentary documents was initiated surreptitiously by her common law spouse without the knowledge of Ms. Melcher’s children. While the Applicants did include the declaration of invalidity of the will as part of the overall relief sought in this case, it is clear that their litigation was primarily focused on having their mother undergo a capacity assessment and then be able to resolve the issue of who would be responsible for her ongoing care.
81In other words, the Applicants did not set out to make this a “will challenge”. The Applicants do not seek probate relief or a declaration fixing inheritance. Rather the Applicants sought the findings necessary to resolve the issues concerning capacity and consequential relief that would flow from it as it related to their mother’s ongoing care.
82It is also apparent that this litigation has already been extraordinarily costly and has produced a substantial evidentiary record. This was of particular concern to me and voiced throughout the litigation given Ms. Melcher’s limited assets. Having now engaged in such extensive litigation including costs incurred for several medical experts (Dr. Peebles, Dr. Schulman, and Dr. Menzies), I find these circumstances warrants declaratory relief from this court regarding the validity of the October 2024 will so as to avoid further future costs and litigation.
83Finally, it is clear from Dr. Menzies’ Report that Ms. Melcher is not expected to regain capacity to make any changes to her will. The October 2024 will was executed after Dr. Becker diagnosed Ms. Melcher with moderate dementia, described as “a progressive neurodegenerative condition in the moderate stages of severity”. In addition, Dr. Menzies documented Ms. Melcher’s a continuing cognitive decline with no improvement, consistent with the expected course of dementia. Consequently, some of the policy concerns that might preclude this court’s direction or advice on a will while the testator is still alive are simply not present.
84For all these reason, I find that this court has jurisdiction pursuant to the common law to declare the October 2024 will to be invalid because it was executed when Ms. Melcher lacked testamentary capacity and lacked capacity to instruct counsel.
H. Conclusion on Issue 2
85Based on Dr. Menzies’ findings, the medical notes, the evidence of the Applicants and Mr. Carty, as well as Ms. Melcher’s own affidavit and cross-examination, I find that Ms. Melcher did not have capacity to execute a new POA for property, testamentary capacity, or capacity to instruct counsel as the time she executed the October 2024 Documents.
86Furthermore, to the extent that she might have had and continues to have some capacity, to designate a new POA for personal care, I find that since April 2024, she has been vulnerable to undue influence, and consequently, the October 2024 POA for Personal Care is invalid.
87I find that the October 2024 Documents are invalid and of no force and effect because they were entered into by Ms. Melcher at time when she lacked testamentary capacity and lacked capacity to instruct counsel. Furthermore, I find that at the time the October 2024 Documents were executed, Ms. Melcher was at high risk of undue influence from Mr. Carty and therefore, these documents were not executed as an exercise of her independent will and judgment.
88Dr. Menzies concluded that Ms. Melcher has lacked the requisite capacity to manage property since at least April 2024. That finding is highly probative of her inability to understand and appreciate the nature and consequences of any financial and property-related decisions, including decisions affecting her investments, insurance products, and beneficiary designations. In these circumstances, I agree with Applicants’ counsel that any such changes made since April 2024, should be declared null and void. To permit these changes to stand would be to give legal effect to transactions undertaken without capacity (Ms. Melcher) or made by a person who was not properly authorized to act as her POA (Mr. Carty), undermining the protective purpose of the SDA and exposing Ms. Melcher’s estate and dependants to prejudice.
89No claim was brought by Ms. Melcher or any other person to invalidate the Original Testamentary Documents. I agree with counsel that out of an abundance of caution and to avoid any confusion, there should be a declaration that the Original Testamentary Documents remain in full force and effect. As a consequence, those persons named as POAs for property and care in the Original Testamentary Documents, will be responsible for Ms. Melcher’s ongoing and future care.
90Since Ms. Melcher does retain capacity to execute a new POA for personal care, but is at risk of undue influence, there will be a further Order pursuant to s. 55 SDA declaring the Applicants as Ms. Melcher’s guardians of personal care.
91Rule 7.03(2) of the Rules of Civil Procedure state that where a mentally incapable person who does not have a guardian with authority to act as litigation guardian in a proceeding but has an attorney under a POA with authority, the attorney will act as their litigation guardian.
92Having found that Ms. Melcher does not have capacity to manage her property or capacity to instruct counsel, I find that her POAs for property should be appointed as her litigation guardians going forward. The Original Testamentary Documents name her three children, Tony, Kelly, and Nathalie, as her POAs for property and as such, they shall be declared as her litigation guardians. I understand that the Office of the Public Guardian and Trustee support this position.
93Counsel for the Applicants also seeks an order that Mr. Carty’s authority to act as POA be terminated pursuant to s. 39 SDA due to neglect and because his continuation as POA is not in Ms. Melcher’s best interests. Given the declaration of invalidity of the October 2024 Documents, the appointment of the Applicants as Ms. Melcher’s guardian for personal care, and Mr. Carty’s own relinquishment of his role, I do not find such an order is necessary.
94I also disagree that an order is necessary to require Counsel Sean Taylor, Jerry Hiscock, or the law firm of Hiscock McCracken Lawyers to retain all documents related to this litigation. That is an obligation that flows from their ethical duties as counsel.
Order
95There will be an Order that:
A. Patricia Melcher is incapable of managing her property within the meaning of section 6 of the Substitute Decisions Act, and that she requires decisions to be made on their behalf by a person authorized to do so.
B. Patricia Melcher is incapable of personal care, specifically in respect of health care, shelter, safety, hygiene, clothing, and nutrition within the meaning of section 45 of the Substitute Decisions Act, and that she requires decisions to be made on her behalf by a person authorized to do so.
C. The Applicants are appointed as Ms. Melcher’s guardian for personal care pursuant to s. 55 of the Substitutes Decisions Act.
D. The Powers of Attorney for Property and Powers of Attorney for Personal Care executed on October 10, 2024, and prepared by Bradley Hiscock McCracken LLP, are invalid, having been executed at a time when Patricia Melcher lacked the requisite capacity and were the product of undue influence.
E. The Continuing Power of Attorney for Property executed on December 21, 2023, appointing Tony Melcher, Kelly Courchesne, and Natalie Lalonde jointly, and prepared by Howard, Kelford & Dubois LLP, remains valid and in full force and effect.
F. The Power of Attorney for Personal Care executed on December 21, 2023, appointing Kelly Courchesne as attorney, with Tony Melcher and Natalie Lalonde as substitute attorneys, and prepared by Howard, Kelford & Dubois LLP, remains valid and in full force and effect.
G. The Will executed by Patricia Melcher on October 10, 2024 in the offices of Bradley Hiscock McCracken LLP, is invalid, having been executed at a time when Patricia Melcher lacked testamentary capacity and was subject to undue influence.
H. The Will executed by Patricia Melcher on January 2, 2024 in the offices of Howard Kelford & Dubois LLP remains valid and in full force and effect.
I. Any change affecting beneficial entitlement, including any change to the designation of beneficiaries, in respect of any life insurance policy in the name of Patricia Melcher made on or after April 2024, and any life insurance policy obtained in her name during that period, is null and void.
J. Any change affecting beneficial entitlement or control, including changes to beneficiaries, ownership interests, or the addition or removal of authorized or joint account holders, in respect of any investment account in the name of Patricia Melcher made on or after April 2024, including but not limited to TFSAs and RRSPs, is null and void.
K. Patricia Melcher lacks capacity to instruct counsel and has been unable to do so since July 2024, and thereby, Tony Melcher, Kelly Courchesne, and Natalie Lalonde are jointly appointed as litigation guardians for Patricia Melcher pursuant to Rule 7.03(2)3. of the Rules of Civil Procedure.
Costs
96The Applicants are the successful party in this Application and presumptively entitled to costs. The issue of costs on this Application and any related motions, including costs against Patricia Melcher’s previous counsel, Sean Taylor, pursuant to Rule 57.07, are adjourned for further hearing and disposition. The parties are encouraged to resolve the issue of costs.
Judge Somji
Released: April 2, 2026