COURT OF APPEAL FOR ONTARIO
RE:
DONALD DAVIDSON (Plaintiff/Appellant) and GEORGE ERIC SINKER, THE LONDON AND MIDDLESEX LUNG ASSOCIATION, THE KIDNEY FOUNDATION OF CANADA, THE HEART AND STROKE FOUNDATION OF ONTARIO, THE WAR AMPUTATIONS OF CANADA, THE GOVERNING COUNCIL OF THE SALVATION ARMY, CANADA, THE ALZHEIMER SOCIETY OF CANADA, ST. JOSEPH’S HEALTH CARE FOUNDATION OF LONDON, PARKWOOD HOSPITAL FOUNDATION, UNIVERSITY HOSPITAL FOUNDTION OF LONDON, and VICTORIA HOSPITAL FOUNDATION (known as London Health Sciences Centre Foundation) (Defendants/Respondents)
BEFORE: ABELLA, GOUDGE AND MacPHERSON JJ. A.
COUNSEL: C.F. MacKewn For the appellant
L.F. Farrell P.J. Puddy For the respondents
HEARD: April 6, 2000
On appeal from the judgment of Mullen J. dated January 28, 1999, made at London, Ontario.
E N D O R S E M E N T
[1] The appellant says that the trial judge implicitly found testamentary capacity and then moved on to find undue influence but in doing so improperly shifted the burden of proof to the appellant.
[2] Without commenting on the capacity issue, we are all of the view that the trial judge came to the right conclusion on the issue of undue influence.
[3] In our view when the trial judge says that the propounders of the 1991 will have not met the onus placed on them, he is saying no more than that where there is substantial evidence of undue influence, if those alleged to exercise the undue influence declined to testify to contradict this, they run the risk of the trial judge concluding that the undue influence has been established. Indeed the trial judge went on to conclude just this in this case.
[4] Even if the trial judge could be said to have erred by shifting the burden of proof to the appellant, it is our view that the evidence in this case overwhelming points to the conclusion of undue influence having been exercised on Mr. Malott by the Davidsons and Dora Smith. The finding of undue influence was therefore the proper one to make in all the circumstances.
[5] As to the finding of costs below, in our view it was within the trial judge’s discretion and we would not interfere.
[6] The appeal must therefore be dismissed. In the circumstances however, all parties are entitled to their cost of the appeal out of the estate.
“R.S. Abella J.A.” “S.T. Goudge J.A.” “J.C. MacPherson J.A.”