CITATION: Tate v. Gueguegirre, 2015 ONSC 844
DIVISIONAL COURT FILE NO.: 33/13 DATE: 20150204
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, CORBETT AND GILMORE JJ.
BETWEEN:
BRUCE DAVID TATE
Plaintiff
(Respondent/Appellant on Cross-Appeal)
– and –
JOANNE GUEGUEGIRRE, JACKIE MACDONALD, CHERYL MACDONALD, COLLEEN SPARKS, SHEILA SPARKS and JASMINE SWEATMAN, in her capacity as Estate Trustee During Litigation
Defendants
(Appellants/Respondents on Cross-Appeal)
Anne E. Posno, for the Plaintiff (Respondent/ Appellant on Cross-Appeal)
Nancy J. Tourgis and Eric P. Borzi, for the Defendants (Appellants/Respondents on Cross-Appeal), Joanne Gueguegirre, Jackie MacDonald, Cheryl MacDonald and Colleen Sparks
Hartley M. Isenberg, for the Defendant, Sheila Sparks
HEARD at Toronto: February 4, 2015
D. L. CORBETT J. (ORALLY)
[1] We are all of the opinion that the appeal must be allowed and the case remitted for a new trial on the issue of undue influence.
[2] The trial judge identified the issues for trial as undue influence and testamentary capacity (Decision, para. 1). The trial judge found that there were "suspicious circumstances" but that "there was no undue influence" and the "will was made with testamentary capacity." (Decision, para. 2).
[3] The trial judge summarized the evidence of suspicious circumstances in paras. 138 and 139 and concluded that these circumstances rebutted the presumption of capacity, leaving it to the respondent to prove capacity on a balance of probabilities. (Decision, para. 140).
[4] The trial judge then analyzed the evidence of capacity and concluded that the respondent "has on a civil standard proven on a balance of probability that the testator had testamentary capacity at the time of the execution of the final will". (Decision, para. 169).
[5] The trial judge did not analyze the evidence or make factual findings on the issue of undue influence.
[6] The respondent argues that paras. 156 to 159 of the Decision was an analysis of the undue influence issue. We do not agree. It is part of the trial judge's analysis under the heading "Capacity at the Point of Signing the Last Will". It addressed the appellant's argument that the contents of the Will impugned the testator's capacity, an argument that the trial judge did not accept.
[7] This evidence would also be relevant to the issue of undue influence but its consideration in respect of the capacity issue does not serve as an analysis of the undue influence issue.
[8] We conclude that there is no analysis of the undue influence issue and no findings of fact or reasons to support the trial judge's conclusion that there was no undue influence.
[9] There was significant evidence suggesting that the Will was a product of undue influence including:
(i) the increasing isolation of the testator;
(ii) the testator's dependence on the respondent;
(iii) the substantial pre-death transfers of wealth from the testator to the respondent;
(iv) the testator's expressed yet apparently unfounded concerns that he was running out of money;
(iv) the testator's failure to provide a reason or explanation for leaving his entire estate to the respondent and excluding his daughters from it;
(vi) the material changes in circumstances between the time of the first Will from the time of the final Will that would undermine the testator's earlier reasons for favouring his son in his Will;
(vii) the move by the testator to Bobcaygeon, increasing his isolation and the control over him by the respondent;
(viii) the circumstances of the making of the Will including:
(a) using a lawyer previously unknown to the testator and chosen by the respondent;
(b) the respondent conveying instructions to the lawyer concerning the contents of the Will;
(c) the respondent apparently receiving a draft of the Will before it was executed by the testator and then the respondent taking the testator to the lawyer to sign the Will;
(ix) the testator's documented statements that he was afraid of the respondent.
[10] Undue influence is a central issue in the case. It does not stand or fall with the issue of testamentary capacity. In the absence of factual findings on the evidence relevant to this issue, we cannot decide the issue ourselves and must remit it back for trial in front of a different trial judge.
SACHS J.
COSTS
[11] I have endorsed the Appeal Book, "For reasons given orally by Corbett J. this appeal is allowed. The judgment of the trial judge is set aside and the matter is remitted for a new trial on all issues in front of a different judge. The appellants are entitled to their costs of the appeal fixed in the amount of $15,000, all inclusive payable from the estate as per the agreement of the parties. Costs of the first trial in the discretion of the new trial judge."
___________________________ SACHS J.
D. L. CORBETT J.
GILMORE J.
Date of Reasons for Judgment: February 4, 2015
Date of Release: February 11, 2015
CITATION: Tate v. Gueguegirre, 2015 ONSC 844
DIVISIONAL COURT FILE NO.: 33/13 DATE: 20150204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, CORBETT AND GILMORE JJ.
BETWEEN:
BRUCE DAVID TATE
Plaintiff
(Respondent/Appellant on Cross-Appeal)
– and –
JOANNE GUEGUEGIRRE, JACKIE MACDONALD, CHERYL MACDONALD, COLLEEN SPARKS, SHEILA SPARKS and JASMINE SWEATMAN, in her capacity as Estate Trustee During Litigation
Defendants
(Appellants/Respondents on Cross-Appeal)
ORAL REASONS FOR JUDGMENT
D. L. CORBETT J.
Date of Reasons for Judgment: February 4, 2015
Date of Release: February 11, 2015