COURT OF APPEAL FOR ONTARIO
MacPherson, Sharpe and Rouleau JJ.A.
In the Estate of the Estate of Liisa Maria Chappus, deceased
BETWEEN:
Mary Travica
Applicant (Appellant)
and
Lawrence Robert Mailloux, John Greenaway, Vincent W. Moser, Gary Alcock, Harriet Alcock, Joan Alofs, Amherstburg Food Bank, Amherstburg Food and Fellowship Mission, The Arthritis Society, Black Historical Museum, (a/k/a North American Black Historical Museum), Canadian Cancer Society, Canadian Diabetes Association, Canadian National Institute For The Blind, Finnish Lutheran Evangelical Church of Windsor, Heart and Stroke Foundation, Dennis Humen, Gloria Jacques, Lions Club, Donna McColloch, Patricia Monforton, Sandra Morrison, Mamie Nicholson, Rotary Club, St. John Baptist Church, The Salvation Army, Linda Vandelinder, Mary Van Denham McKay, War Amps National Headquarters, Windsor Essex County Humane Society, Irene Beaudoin, Canadian Cystic Fibrosis Foundation, Windsor Chapter, H.M.S. Detroit Project,(a/k/a Project HMS Detroit), Hiatus House, Vera Matte, Dr. A. Robert McKay, Arthur McKay, Mary Beth McKay, Multiple Sclerosis Society of Canada, (Ontario Division), Canadian Legion, Amherstburg Branch, University Of Windsor, Windsor Symphony Society, and The Children’s Lawyer
Respondents (Respondents in appeal)
James K. Ball for the appellant
Raymond G. Colautti for the respondents, John Greenaway and Vincent W. Moser
No one appearing, for the respondents The Arthritis Society, Canadian Cancer Society, Canadian Diabetes Association, Canadian National Institute For The Blind, The Salvation Army and the University of Windsor.
Heard: March 30, 2009
On appeal from the judgment of Justice Wolfram U. Tausendfreund of the Superior Court of Justice dated September 18, 2008 and reported at (2008), 43 E.T.R. (3d) 210.
1The appellant, a beneficiary under a 1986 will, challenges the validity of the series of wills culminating in a will dated March 12, 2001 and a codicil dated September 17, 2001. The challenged wills and codicil were executed over a three-year period between 1998 and 2001 by an elderly testatrix who died in 2004.
2The appellant alleges that the impugned wills were invalid owing to a “presumption of undue influence” arising from the nature of the relationship between the testatrix and the respondent beneficiaries and executors: Lawrence Mailloux, the lawyer who drafted the wills; Dr. John Greenaway, the testatrix's doctor; and Vincent Moser, her accountant. All of the respondents received substantial bequests under the challenged wills, Dr. Greenaway receiving more that $1 million, about half the value of the entire estate.
3A trial was ordered on the issue of the validity of the wills. The respondents propounded the validity of the wills and brought a motion for summary judgment to dismiss the applicant’s challenge to their validity. The appellant led no evidence on the motion, but argued that the matter could not be resolved summarily and that there were issues requiring a viva voce trial. The motion judge concluded that there was no issue for trial and granted summary judgment.
ISSUES
4The appellant raises two issues by way of appeal:
Did the motion judge have jurisdiction to grant summary judgment?
Did the motion judge err in concluding that there was no triable issue?
ANALYSIS
1. Jurisdiction
5Rule 75.06 (3)(d) of the Rules of Civil Procedure provides that, on a motion for directions, the court may direct “procedures for bringing the matter before the court in a summary fashion, where appropriate”. The appellant submits that as the order for directions in this case made no provision for summary disposition, and as this was not an “action” to which Rule 20 applies, the motion judge had no jurisdiction to entertain the motion for summary judgment.
6It would have been preferable had the respondents moved to amend the original order for directions to provide for summary disposition. However, it is equally true that if the appellant intended to insist that, without an amendment to the order, the court could not deal with the motion for summary judgment, she should have taken appropriate and timely steps to object to the procedure. However, when served with the motion for summary judgment, the appellant fully participated in the proceedings by cross-examining the respondents’ witnesses.
7I am not persuaded that the respondents’ failure to have the order for directions amended deprived the court of jurisdiction to grant summary judgment. The rules contemplate the possibility of summary disposition in contentious estate matters, and in the circumstances of this case, the failure to amend the order amounts to nothing more that a procedural defect that caused no prejudice to the appellant.
2. No Triable Issue
8I see no error on the part of the motion judge in concluding that there was no triable issue raised by the appellant to challenge the wills. Mailloux, the lawyer who drew the will, swore that he advised the testatrix to get independent legal advice but that she refused to do so. Mailloux died before he was cross-examined on his affidavit and the motion judge ruled his affidavit to be admissible based on necessity and reliability. Dr. Greenaway swore that the testatrix was of sound mind and that he did not attempt in any way to influence the manner in which she disposed of her estate.
9The respondents compiled a substantial record of evidence to support their contention that the wills were properly executed, that the testatrix was of sound mind, and that she fully understood the contents of the wills and how her property was to be disposed of on her death. The respondents led affidavit evidence from several of the testatrix’s caregivers and another doctor who saw the testatrix several times in the absence of Dr. Greenaway. This evidence painted a consistent picture of the testatrix as being mentally alert, competent, and a person who knew exactly what she wanted.
10The appellant led no evidence on the motion to dispute any of these facts. The appellant submitted, however, that as the respondents were the testatrix’s lawyer, doctor and accountant, and as they all received substantial bequests under the challenged wills, the circumstances are inherently “suspicious” and that a trial is therefore required. The appellant also submits that admissibility of Mailloux’s evidence should be tested on a viva voce hearing.
11The appellant points to evidence that Dr. Greenaway, acting under a power of attorney during the testatrix’s lifetime, had invested a substantial sum of her money in his own name on her behalf and that he engaged in a transaction with one of the testatrix’s caregivers apparently designed to conceal earned income as a gift. The appellant submits that these transactions are questionable and that they put Dr Greenaway’s credibility in issue and that a viva voce hearing is therefore required.
12The motion judge carefully considered all the available evidence. He found that while it would have been preferable for Mailloux to have declined to take instructions that led to a bequest in his favour, this did not affect the validity of the will. In this regard, I would observe that Mailloux willingly acted on the testatrix’s instructions which resulted in a reduction in the bequest he was to receive. In any event, I do not agree that the determination of the legal issue of the admissibility of his evidence would benefit from a viva voce trial.
13Dr. Greenaway explained the impugned investment transaction. The testatrix was reluctant to invest her money in anything other than secure, interest-bearing instruments, and he paid her an appropriate rate on the money he invested. The motion judge observed that Dr. Greenaway had made full disclosure of this transaction on the passing of accounts. With respect to the other transaction involving the payments to the caregiver, the motion judge found that Dr. Greenaway had simply tried to assist the testatrix and her caregiver.
14The motion judge concluded that there was an absence of evidence of suspicious circumstances and no triable issue as to the validity of the will. I see no error in the reasons of the motion judge that would justify the intervention of this court. The respondents gave detailed explanations of the circumstances the appellant contends are “suspicious” and, significantly, the appellant offered no evidence to the contrary. In the absence of any evidence to challenge the substantial body of evidence led by the respondents to support the validity of the will, I see no basis for concluding that the motion judge erred in concluding that there remained no triable issue and that it was appropriate to award summary judgment declaring the impugned will to be valid.
CONCLUSION
15Accordingly, I would dismiss the appeal with costs to the respondents fixed at $7,500 inclusive of disbursements and GST, payable from the estate.
“Robert J. Sharpe J.A.”
“I agree J.C. MacPherson J.A.”
“I agree Paul Rouleau J.A.”
RELEASED: April 3, 2009
