Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20221003 DOCKET: C69981

Lauwers, Roberts and Miller JJ.A.

BETWEEN

Nancy Johnson Applicant (Appellant)

and

Janice Johnson in her personal capacity and in her capacity as Estate Trustee of the Estate of Mabel Johnson, deceased, Hugh Johnson, Kelsey Johnson, Bradley Johnson, Holy Trinity United Church Foster Parents Plan, and Foundation for Children Respondents (Respondents)

Counsel: John E.S. Poyser and Bryan Gilmartin, for the appellant Jean-Pierre Quintal and Kayla Quintal, for the respondent, Janice Johnson Hugh Johnson, in person [^1]

Heard: September 26, 2022 by videoconference

On appeal from the judgment of Justice Heather J. Williams of the Superior Court of Justice, dated January 10, 2022, with reasons reported at 2021 ONSC 6415, and from the costs order, dated January 10, 2022, with reasons reported at 2022 ONSC 160.

Reasons for Decision

Overview

[1] This appeal arises out of an estate dispute among Nancy Johnson, Janice Johnson, and Hugh Johnson, who are the three children of the late Mabel Johnson. For ease of reference, we refer to the siblings by their first names. Mrs. Johnson died on August 23, 2020, at the age of 99, leaving a will that she executed on August 12, 2015 (“the 2015 will”). In the 2015 will, Mrs. Johnson’s estate of about $457,000 was divided between Janice and Hugh. Nothing was left to Nancy.

[2] On March 4, 2021, a certificate of appointment of estate trustee with a will was issued to Janice, with respect to the 2015 will.

[3] On June 8, 2021, Nancy commenced the underlying application under r. 75 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) to have the 2015 will proven in solemn form. She alleges that there is evidence to suggest that the 2015 will is invalid because the circumstances surrounding its execution are highly suspicious and there are reasonable grounds to believe that her mother lacked capacity. Specifically, she highlights her disinheritance under the 2015 will as an inexplicable and marked change from the previous will executed by her mother in 2007, in which she treated her children equally. Nancy seeks an interim preservation order to prevent the distribution of her mother’s estate pending the disposition of her application, and the production of medical, financial, and legal documents relating to her mother.

[4] Applying the analytical framework set out by Gillese J.A. for this court in Neuberger v. York, 2016 ONCA 191, 395 D.L.R. (4th) 67, and further explained by Myers J. in Seepa v. Seepa, 2017 ONSC 5368, the application judge determined that Nancy had failed to meet the minimal evidentiary threshold necessary before the court would exercise its discretion to require proof of the 2015 will in solemn form and expose the estate to expense and litigation. She dismissed the application and ordered Nancy to pay Janice costs in the all-inclusive amount of $8,758.19.

[5] Nancy appeals the dismissal of her application and seeks leave to appeal the costs award. She submits that the application judge erred in law by misapplying this court’s directions in Neuberger and by dismissing the application in the absence of the medical, financial, and legal documentary production that she should have ordered and other evidence that should have been called.

[6] Following the appellant’s submissions, we dismissed the appeal with reasons to follow. These are those reasons.

Analysis

(1) Neuberger approach

[7] This court clarified in Neuberger that “an interested person” does not have an absolute right to require proof of a will in solemn form but that “the court has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved”: at para. 87. In order to avoid exposing estates to needless expense and litigation, “some minimal evidentiary threshold” must be met “before a court will accede to a request that a testamentary instrument be proved”: at para. 88.

[8] The correct approach that a court should follow was set out at para. 89 of Neuberger:

[A]n applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved.

[9] Nancy maintains that the application judge erred in her application of the Neuberger approach by accepting the respondents’ evidence as a full, successful answer to the evidence that she adduced to call into question the validity of the 2015 will. We are not persuaded by this submission. At its core, Nancy’s submission amounts to an invitation for this court to reweigh the evidence and make different findings without pointing to any reversible error that would warrant appellate intervention. That is not our task.

[10] The application judge carefully reviewed and engaged in the limited weighing of the parties’ evidence that she was required to undertake. She was not persuaded by Nancy’s evidence that the change to the 2015 will was inexplicable or that Mrs. Johnson might have lacked capacity. She was entitled to come to these conclusions.

[11] The application judge rejected Nancy’s argument that the will change was inexplicable and therefore suspicious. The application judge accepted the respondents’ evidence that Nancy’s own actions led to a serious and irreparable breach with her mother in 2014, well before the execution of the 2015 will. She accepted the evidence that a serious conflict between Nancy and Mrs. Johnson arose in 2014 because of Nancy’s actions as her mother’s attorney for property and personal care in which she appointed herself joint beneficiary of her mother’s investments. Mrs. Johnson demanded an accounting from Nancy that was never provided. Assisted by Janice and Hugh, Mrs. Johnson was then obliged to commence litigation against Nancy and the financial institution that held Mrs. Johnson’s investment accounts so that she could regain control of them. The application judge also accepted the evidence from Mrs. Johnson’s caregivers that Nancy had been abusive to her mother during a telephone conversation in June 2015. She concluded that the totality of this evidence “disclosed a rational and entirely understandable reason for Mrs. Johnson to have prepared a new will in August 2015 to remove [Nancy] as a beneficiary”.

[12] Further, we disagree with Nancy’s submission that the application judge fell into legal error in her consideration of capacity. In our view, Nancy’s submission conflates the consideration of evidence respecting the issue of capacity, as required in the preliminary vetting of Neuberger approach, with a final determination of the issue of capacity for the purposes of determining testamentary validity were the application for proof in solemn form permitted to proceed. As Neuberger instructs, the application judge correctly analyzed the evidence to determine if Nancy had provided some evidence that, if accepted, would call into question the validity of the 2015 will, and if the respondents’ evidence successfully answered any challenge that arose as a result of Nancy’s evidence.

[13] To that end, the application judge focussed on the key evidence respecting Mrs. Johnson’s capacity. She considered the evidence of the three siblings and the brief letter written by Mrs. Johnson’s doctor, Dr. Baxter, on April 8, 2015 providing a dementia diagnosis. This letter was provided in response to Mrs. Johnson’s financial advisor’s query about her capacity to understand or deal with her accounts. It was not a formal capacity assessment, nor, significantly, did Mrs. Johnson’s doctor indicate she lacked capacity. Moreover, a mere diagnosis of dementia, without more, does not determine the question of capacity; to hold otherwise risks falling into impermissible stereotypes about individuals with mental health and other challenges: Lewis v. Lewis, 2019 ONCA 690, 49 E.T.R. (4th) 175, at para. 6. In any event, the contents of Dr. Baxter’s letter undermine the suggestion of incapacity – he indicated in his letter that Mrs. Johnson would be able to understand “a simple form and its implications if they were explained to her.” The application judge was also entitled to reject Nancy’s description of her mother’s abilities, which she found was exaggerated, and instead to rely on the affidavit evidence of Janice and Hugh that while Mrs. Johnson’s health had its setbacks and was gradually declining as a result of her age, she remained capable and competent to manage her own affairs until late in 2018.

[14] Significantly, the application judge could look beyond the evidence of the siblings. The application judge preferred the evidence proffered by Mrs. Johnson’s solicitors to Nancy’s evidence. First, Mr. Gervais, who acted for Mrs. Johnson in the litigation against Nancy and Mrs. Johnson’s financial institution, deposed that he found her to be “very sharp” and knowledgeable about her finances and that he had no concerns when he met with Mrs. Johnson in May 2015 about her capacity to instruct him or that she may have been acting under the influence of another person. As she was entitled to do, the application judge found that Mr. Gervais’s evidence “neutralized” any suggestion at that time of incapacity arising out of the dementia diagnosis discussed a month earlier in the letter from Dr. Baxter. Indeed, the uncontested evidence by Mr. Gervais, Janice, and Hugh that Mrs. Johnson instigated and participated in the litigation process, albeit with her children’s assistance, but without a litigation guardian, formed part of the evidence before the application judge. The fact that a person in her 90s might need her children to drive her to appointments and assist her in other ways is not surprising and does not, without more, give rise to suspicious circumstances. Moreover, Mrs. Johnson’s long-time lawyer, Mr. Leach, “obviously felt comfortable taking instructions” from her and allowing her to execute the 2015 will in August 2015. Again, there was no suggestion that Mr. Leach was not competent. Without evidence to the contrary, it was reasonable in the circumstances of this case to infer that Mr. Leach would have properly carried out his duties as a solicitor and would not have permitted Mrs. Johnson to execute the 2015 will if he had any concern about her capacity or suspected undue influence: see: Lewis, at para. 7; Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), at para. 48. Finally, the application judge found there was no evidence of undue influence. Indeed, neither Janice nor Hugh was in the city when their mother executed the 2015 will.

[15] We see no error in the application judge’s analysis or her findings. She applied the correct approach from Neuberger. Her findings are rooted firmly in the record and are entitled to appellate deference. It was open to the application judge to find that Nancy’s evidence, even if accepted, was not sufficient to call into question the validity of the 2015 will and that, in any event, the respondents had successfully answered any challenge. The onus was on Nancy to meet the minimum evidentiary threshold with some evidence to rebut the presumption that Mrs. Johnson had the requisite capacity and to show undue influence: Vout v. Hay, [1995] 2 S.C.R. 876, at paras. 26-27. She failed to do so.

[16] We reject Nancy’s submission that her application should not have been dismissed without production of the medical, financial, and legal documents that she had requested or the calling of further evidence from Mrs. Johnson’s advisors. Her argument defeats the very practical purpose of the minimal evidentiary threshold prescribed by this court in Neuberger, at para 88: to avoid putting an estate to the needless expense and delay of a fishing expedition brought by “a disgruntled relative”. It also undermines the policy concerns articulated in Neuberger that a claimant ought not be permitted to deplete an estate and delay its administration by seeking documentary discovery or other directions without meeting the minimal evidentiary threshold of “some evidence” that would call into question the validity of a will and that is not successfully answered by the responding party. These concerns were also addressed by Myers J. in Seepa where he advocates “a culture shift” from the routine standard form orders for directions that “consign parties to lengthy, intrusive, expensive documentary collection and investigation proceedings”: at paras. 2-4.

[17] This is not a motion for summary judgment requiring proof of the case on the merits or meeting the standard of a genuine issue requiring a trial. As Myers J. also succinctly stated in Seepa, at para. 35, “[a]t this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits”. In other words, a claimant should not be able to put an estate to the needless expense of steps, such as documentary discovery, unless he or she meets the minimal evidential threshold prescribed in Neuberger.

[18] Myers J. went on, at para. 39, to offer guidance as to the sufficiency of the evidence that an applicant should put forward to meet the minimal evidentiary threshold. Drawing on the policy concerns and the culture change promulgated by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, 366 D.L.R. (4th) 641, which apply to all civil cases, but are particularly important in estate cases that are at risk of depletion by needless and expensive litigation, he wrote:

The scope of the court’s discretion under Rule 75.06(3) helps to assess the sufficiency of an “answer” to the “minimal evidentiary threshold”. … In my view, the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it. The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides a fair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak. [Emphasis added.]

[19] We agree with this approach. It also provides a complete answer to Nancy’s argument that there is potential procedural unfairness in the Neuberger approach because, as applied by the application judge, it favours an executor who has exclusive access to relevant information. As the underlined portion of Myers J.’s reasons indicates, the safeguard against the alleged risk of unfairness is the court’s consideration of the evidence presented by the parties and the assessment of its sufficiency for the purpose of determining whether the dispute before the court can be fairly resolved on the basis of the existing record.

[20] The application judge followed the correct approach. There is no basis to interfere with her dismissal of the application. Her decision depended heavily on her assessment of the evidence and factual findings to which we owe considerable deference absent error. We see none here.

(2) Costs appeal

[21] We similarly see no error in the application judge’s discretionary decision not to award Nancy her costs of the application payable from the estate. As Brown J. (as he then was) perceptively remarked in Salter v. Salter Estate (2009), 50 E.T.R. (3d) 227, at para. 6: “Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation.” It is well established that estate litigation, like all civil litigation, is subject to the general civil litigation costs regime in accordance with s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 57 of the Rules of Civil Procedure. Exceptionally, costs are ordered to be paid out of the estate where public policy considerations permit it. See: McDougald Estate v. Gooderham (2005), 199 O.A.C. 203 (C.A.), at paras. 78-80; Salter, at para. 5.

[22] The application judge determined, reasonably in our view, that Nancy’s application did not fall within the small category of cases that raise the kind of policy concerns that justify payment of costs from an estate. Specifically, she did not accept that Nancy had reasonable grounds to question her mother’s capacity or the administration of her estate. There is no basis to interfere with the application judge’s discretionary decision.

Disposition

[23] For these reasons, we dismiss the appeal.

[24] The appellant shall pay the respondent, Janice Johnson, her partial indemnity costs of the appeal in the amount of $15,000, inclusive of disbursements and applicable taxes.

“P. Lauwers J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”

[^1]: Mr. Johnson made no submissions.