Court of Appeal for Ontario

Date: 2018-01-19 Docket: C62500

Judges: Strathy C.J.O., Hourigan and Miller JJ.A.

Between

Lorilee Ali Plaintiff (Appellant)

and

Mary Fruci and Robert David Willis Defendants (Respondents)

Counsel

Christopher McClelland, for the appellant

Robert Budgell and Lisa Thompson, for Mary Fruci

Kenneth Garland, for Robert David Willis

Heard: January 15, 2018

On appeal from: the judgment of Justice P.R. Sweeny of the Superior Court of Justice, dated June 30, 2016.

Reasons for Decision

[1] The appellant, Lorilee Ali, appeals the judgment of the trial judge dismissing her action seeking to have certain wills of Florence Louisa Blackburn declared invalid.

[2] Ms. Ali was the great-niece of Ms. Blackburn, who died in June 2007. Over the course of a five-year period between 1998 and 2003, Ms. Blackburn executed three wills and two codicils.

[3] In Ms. Blackburn's 1998 will and two codicils executed in 1999, Ms. Ali was an estate trustee and the residual beneficiary. In wills created in 2000 and 2003, Ms. Ali was neither estate trustee nor beneficiary. Instead, in the 2000 will the respondents Mary Fruci and Robert Willis were beneficiaries and were respectively the estate trustee and alternate estate trustee. Pursuant to the 2003 will, Ms. Fruci was the residual beneficiary and Mr. Willis was the estate trustee. Mr. Willis was also entitled to the transfer of Ms. Blackburn's home upon her death.

[4] Ms. Ali commenced an action seeking to invalidate the 2000 and 2003 wills on the basis of lack of testamentary capacity, lack of knowledge and approval of contents, and undue influence. After a six-day trial Ms. Ali's action was dismissed. The trial judge made a costs award in which he ordered Ms. Ali to pay Ms. Fruci's costs in the amount of $42,000 and Mr. Willis' costs in the amount of $40,000.

[5] On appeal, Ms. Ali submits that the trial judge misapprehended the medical evidence regarding the issue of Ms. Blackburn's testamentary capacity. Further, she submits that the trial judge erred in failing to distinguish between Ms. Blackburn's capacity to manage property and financial affairs and her testamentary capacity.

[6] The appellant acknowledged that the trial judge's findings of mixed fact and law are entitled to deference, absent a palpable and overriding error.

[7] The trial judge found that Ms. Ali failed to establish the existence of special circumstances and, therefore, the presumption of testamentary capacity was not rebutted. We are not persuaded that the trial judge erred in making that finding.

[8] In considering the issue of testamentary capacity, the trial judge carefully and thoroughly examined the evidence, including the evidence of Ms. Blackburn's doctor and other professional witnesses who testified as to her capacity. His conclusion that Ms. Blackburn had testamentary capacity was fully supported by the evidence, including the evidence of the respondents, which he accepted. We are not persuaded that there is any basis for appellate interference with that conclusion.

[9] We also see no error in the trial judge making reference to Ms. Blackburn's capacity to manage her property and financial affairs in his analysis of her testamentary capacity. That was relevant evidence that he was entitled to rely upon. The trial judge identified the correct legal test for testamentary capacity and properly applied it to the evidence.

[10] The appeal is dismissed. Ms. Ali shall pay the costs of the appeal to Ms. Fruci and Mr. Willis jointly in the all-inclusive total amount of $12,000. Those costs are not payable from the estate.

"G.R. Strathy C.J.O."

"C.W. Hourigan J.A."

"B.W. Miller J.A."