Court File and Parties
Court File No.: 012704/12 Date: 2016-09-27 Ontario Superior Court of Justice
In the Estate of: Jerrald Peter Andrew McNamara (also known as Gerald Peter McNamara, Gerrald Peter McNamara, Gerald McNamara, and Gerald P. McNamara), deceased
Between: LOUIE STEKAR, Applicant – and – THOMAS WILCOX, Respondent
Counsel: Mark A. Klaiman, for the Applicant Paul E. Trudelle, for the Respondent
Heard: June 20, 21, 22, 23, 27 and 28, 2016
Reasons for Judgment
Lederman J.
Overview
[1] Jerrald P. McNamara (“the Deceased”) died on June 18, 2012 at age 72.
[2] In his will dated January 15, 1999 (the “1999 Will”), the Deceased left his entire estate to his friend, the respondent, Thomas Wilcox (“Tom”). There is no issue with respect to the validity of the 1999 Will. A Certificate of Appointment of Estate Trustee with a Will was issued by the court on November 22, 2012.
[3] Subsequently, a will dated May 21, 2012 (the “May 21, 2012 Will”) was located.
[4] The May 21, 2012 Will leaves nothing to Tom, and instead, gives everything to other friends and a person who was the Deceased’s caregiver for a short term. The Applicant, Louis Stekar (“Louie”) who is a named executor in the May 21, 2012 Will seeks to propound that will.
[5] Tom opposes the propounding of the May 21, 2012 Will on the grounds that:
(a) Suspicious circumstances exist surrounding the making of the May 21, 2012 Will so as to call into question its validity, and to displace any presumption of testamentary capacity and knowledge and approval; (b) The Applicant has not established that the Deceased had testamentary capacity at the time the May 21, 2012 Will was executed; (c) The Applicant has not established that the Deceased had knowledge and approved of the contents of the May 21, 2012 Will.
Background Facts
[6] Tom and the Deceased were friends for over 40 years, until the Deceased’s death on June 18, 2012.
[7] On January 15, 1999, the Deceased executed the 1999 Will appointing Tom as the estate trustee and naming him the sole beneficiary of his estate. The 1999 Will was written in the Deceased’s own hand writing and was quite simple, leaving all his assets to Tom.
[8] On February 9, 1999, the Deceased appointed Tom as his attorney for personal care and his attorney for property under a continuing power of attorney.
[9] The Deceased lived in his house at 154 Rosemount Avenue in the west end of Toronto. It had been his parents’ home and the Deceased bought out his siblings’ interest in the property. A garage was built in the 1960’s and it was used by the Deceased and others to build and re-build automobile motors as a business.
[10] Although reclusive in nature, the Deceased had a circle of friends who shared a common interest in cars and would visit the Deceased regularly and assist in working on cars. These friends included a number of people who testified at the trial, namely three brothers (Louie, Franc and Ed Stekar) Guilio D’Ambrosi, David Griffiths, John Bernardo and Tom Wilcox.
[11] In addition to running his car business from the premises, the Deceased also had a number of tenants living in his house, providing him with some further income.
[12] The Deceased’s estate consisted of, essentially, his house at 154 Rosemount Avenue, some cash, a car, tools and personal property. Other than the real property, the other assets were of nominal value.
January – April, 2012
[13] The Deceased had long-standing diabetes and a psychological history of depression. He had a drug and alcohol addiction over the years which all came to a head in late 2011 and early 2012. Louie testified that at that time the Deceased was having issues: “he was not 100% there”. By January 2012, he was a “mess”. He was “not the Jerry we knew”.
[14] In mid-January 2012, the Deceased apparently wanted to change his power of attorney to Louie as attorney. The reason given was that Louie was closer in proximity than was Tom and would be better situated to take care of the Deceased’s affairs. Accordingly, a power of attorney for property appointing Louie as attorney was filled out by Louie and signed by the Deceased. Louie did not know why a power of attorney for personal care was not prepared. When the power of attorney for property was about to be signed, a telephone call was placed to Tom to advise him of the change. Tom understood that he was to remain as primary attorney and that Louie would be an alternate. In any event, Tom had no objection to this new power of attorney being executed. He was never shown the new power of attorney document. Although this new document was prepared, Louie never acted on it. Tom continued to act in this capacity.
[15] The Deceased’s condition deteriorated rapidly into a downward spiral. On March 3, 2012 the police were called to the Deceased’s residence. He was taken to hospital by ambulance and was assessed under the Mental Health Act. A physician completed the required psychiatric assessment and determined that the deceased was incapable of caring for himself. As a result, he was involuntarily confined in the psychiatric ward at Humber River Hospital.
[16] The admitting diagnosis and records identify Benzodiazepine withdrawal, poor hygiene, rambling thoughts and hallucinations. Throughout the Deceased’s six week admission in Humber River Hospital, he is described as having confused delusional thoughts, no insight into his illness, hallucinations and paranoia. The History and Progress Notes indicate that the Deceased acknowledged that he heard voices in his head, held the delusion that one member of the hospital staff was going to marry him and take him home to care for him. He was often disoriented to time and place.
[17] The psychiatrist at Humber River Hospital, Dr. Yousef, stated in her March 30, 2012 note that the Deceased, although delusional, was “competent financially”. Dr. Yousef noted as follows:
“Patient seen to assess his financial capacity. Patient is aware of his income and assets. He is aware of who has POA. He said it was given only to Tom Wilcox and not to anyone else. He is also clear about the will he wrote to give the house for his boy old friend Tom. He said he had not talked to his daughter for 20 years. Patient remains delusional about going home with “the lady”.”
[18] Notwithstanding his dire condition upon admittance to the hospital, the Deceased steadily improved over a six week period in the hospital. Arrangements were made among his friends to prepare for his discharge from the hospital and for ongoing care thereafter.
[19] The Deceased had lived in the basement of his house and had rented out the first, second and third floors to tenants. There had been 5 or 6 tenants living in the house at all times. The basement was described as not being livable with garbage piled everywhere. One of his friends, Guilio D’Ambrosi (“Guilio”), undertook to renovate the first floor of the house to provide livable space for the Deceased when he left the hospital. He, along with friend, Fred Iammizzi, purchased materials and did all the work to ready the premises for the Deceased. Although Guilio paid for the materials, he was reimbursed with Tom’s approval from the rent collection from tenants.
[20] In addition, the group of friends also made arrangements for the Deceased’s care and to ensure that his intake of prescription drugs was controlled. In this regard, they hired Norma Clarke (“Norma”) as a caregiver. She is the wife of Guilio’s business partner, David Griffiths, also known as “Tyrone”. Guilio and Tyrone had worked on cars together in the Deceased’s garage. The arrangement was that Guilio would pay Norma her salary and Tom would arrange for Guilio to be reimbursed out of money in the Deceased’s bank account.
[21] Although the Deceased was steadily improving in the hospital, his condition fluctuated. His delusions remained, but in a hospital note dated April 20, 2012, they were described as being “shakable”, i.e. not fixed. He was said to be “no longer confused”. He required personal care and support and a referral was made to the Community Care Access Centre to provide occupational therapy assessment at home.
[22] Up until the end of 2011 and early 2012, the Deceased had been self-sufficient. He was taking care of himself, paying his bills, collecting rent and doing his own banking. Prior to the Deceased’s hospitalization, Tom had not been involved in taking care of any of the Deceased’s finances.
[23] While in the hospital, Tom was involved in managing the Deceased’s finances. He paid the Deceased’s bills and deposited cheques. Further, Guilio testified that in cleaning out the basement, he found $10,000 in cash belonging to the Deceased. He turned this money over to Tom as the Deceased’s attorney.
[24] The Deceased was discharged from the hospital on April 20, 2012 and Norma took over as his caregiver. She controlled his medical prescriptions and there was no further evidence of any drug abuse. By all accounts, the group of friends was very happy with the care that she administered and they believed that he was better cognitively.
Thoughts About Changing His Will
[25] After his discharge from the hospital, the Deceased made some isolated statements about preparing a new will. At one point, he told Guilio that he wanted a lawyer to prepare a will, to give everything to Guilio. Guilio testified that he responded that the Deceased should do what he wanted but that he didn’t want anything. Guilio did not follow up by bringing in a lawyer and never knew what became of the matter.
[26] Ed Stekar (“Ed”), a friend and next door neighbour of the Deceased, gave evidence that he was called by the Deceased and he met with the Deceased on May 8, 2012. At that time, the Deceased told him that he wanted Ed to get a will kit, and that he wanted to leave his entire estate to Ed. The Deceased told Ed that he wanted to name him as his attorney under a power of attorney, and a living will, as well.
[27] Ed purchased a will kit for the Deceased, which included a power of attorney, a living will and form of a will. Ed completed it, naming himself as sole beneficiary and attorney under the living will. Ed signed the will as witness and left it for the Deceased to sign; but the Deceased did not in fact sign the will.
[28] Subsequently, Ed inquired about the will and the Deceased told him not to worry, as the Deceased said he would be seeing his lawyer about it. Ed testified that the Deceased seemed confused and didn’t have a clue where the will kit had gone. The Deceased instructed Ed to keep the matter quiet and Ed did not tell anyone that the Deceased had wanted to make a will leaving everything to him. No will naming Ed as the beneficiary was actually ever executed.
[29] John Bernardo (“Bernardo”), a friend of the Deceased, testified that he visited the Deceased in early May 2012 and that the Deceased praised Guilio, Franc and Louie for the renovation work to his home. When Bernardo asked about Tom, the Deceased said he was “fed up with him” and that “Tom was just waiting for him to die in order to get the house.” The Deceased said he would take care of Guilio and the twins (Louie and Franc). When Bernardo asked about Tom, the Deceased became angry and said “he was in for a rude awakening”.
The May 21, 2012 Long Weekend
[30] The Deceased was a religious man. Tyrone, Norma and the Deceased shared an interest in Evangelism. The Deceased was a follower of the American evangelist, Jimmy Swaggart. He possessed a “Jimmy Swaggart” study bible. He told Norma that he wanted to go to church with her. Norma would read the bible to him. He told Norma that she must read the bible every day.
[31] Tyrone and Norma had attended a church at which Joy Vassal (“Joy”) was the Pastor. Subsequently, they stopped going to that church in 2013 and 2014 when they moved away. Tyrone described Joy as an evangelist and a “prayer warrior”.
[32] Tyrone and the Deceased discussed “evangelist healing” and Tyrone told the Deceased about Joy. The Deceased stated that he wanted to meet her. Tyrone arranged to bring her over to see him. Norma and Tyrone brought Joy to visit the Deceased on May 21, 2012. Tyrone testified that Joy had only attended at the Deceased’s residence on that one occasion. Norma did not know the purpose of Joy’s visit. Joy arrived at the premises at about 9:30 a.m. or 10:00 a.m.
[33] Upon dropping Joy off at the house, Norma left to go shopping and, upon her return two or three hours later, she took Joy home. They had no conversation about what was discussed between Joy and the Deceased.
[34] Tyrone testified that Joy prayed for the Deceased in the house for about 10-30 minutes.
[35] The Deceased then asked Tyrone to bring a man who was cleaning the yard, Michael Imperato (“Michael”) into the house; and then the Deceased asked Tyrone to bring into the house Bryan Bynoe (“Bryan”) who had been working in the garage. Guilio had arranged for Michael (whose father was Guilio’s friend) to be working at the yard that day. Bryan was a friend of Tyrone.
[36] Michael and Bryan were called into the house to witness the signing of a will. Bryan testified that he was present with Michael, Tyrone, the Deceased and a black lady. He did not know who she was. The Deceased, Michael and Bryan were seated at a kitchen table. The black lady and Tyrone were standing. The lady said the Deceased needed witnesses for the will.
[37] Bryan said the will was already on the table when he came in. The will had a stamp of the “God’s House of Prayer” on it with a church address and a number of email addresses for Joy. However, Joy’s signature was not on the document at the time.
[38] Bryan did not know who prepared the will. Nor was there any discussion about who prepared it.
[39] The Deceased stated the contents of the will in point form and he signed the will. The witnesses were asked to sign the will. They did and went back outside to work.
[40] At first, Bryan said nothing else was signed but later testified that he signed a letter dated May 21, 2012, which was also on the table.
[41] Michael’s evidence about witnessing the will is slightly different than the testimony given by Bryan. Michael testified that when he was called into the house, Tyrone then left. He said that a black lady, whose name he did not know, was present, along with the Deceased. He testified that another man was brought in whom he did not know.
[42] Tyrone testified that he did not know why the Deceased wanted the two men to come into the house and did not remain in the house and did not know what transpired in the house.
[43] Michael testified that he signed the will as a witness but nothing else was signed that day. He did not mention the letter that Bryan said he signed on that occasion.
[44] Both Michael and Bryan were told by the Deceased not to tell anyone about the signing of the will. And they did not.
Re-Admittance to the Hospital
[45] On June 1, 2012, about six weeks after his discharge from the hospital, the Deceased was re-admitted to the hospital with respiratory problems at which time he was assessed by his family physician, Dr. Herzog. He noted that the Deceased was confused about the year and was not alert. However, drug tests that were performed on the Deceased showed that he was drug free except for Benzodiazepines which may have been prescribed. He certainly was clean of all other drugs.
[46] The Deceased remained in the hospital until he passed away on June 18, 2012.
Finding of the May 21, 2012 Will
[47] Before the Deceased was re-admitted to the hospital, he told Norma to take his Jimmy Swaggart bible. At some point in time, Norma put the bible into a garbage bag containing linens which she was bringing back to her home. She put the bag into a spare room in her house.
[48] Months later, around December 12, 2012, she was in the process of emptying out the bag which also had the bible in it. She discovered an unsealed envelope within the bible and it contained the May 21, 2012 Will.
[49] Norma told her husband Tyrone about it, who told her to call Guilio and ultimately she gave him the will. Norma testified that she was not aware of this will before; nor had the Deceased ever told her about it.
Contents of May 21, 2012, Will
[50] This will provided that the Deceased’s entire estate was to go to Guilio to the extent of 70% and “Frank” Stekar to the extent of 30%. It also gifted the sum of $100 to his daughter and 10% of the appraised value or proceeds of his home to Norma.
[51] Louie was named as the executor but was not a named beneficiary.
Suspicious Circumstances
[52] Suspicious circumstances may be raised by:
(a) circumstances surrounding the preparation of the will; (b) circumstances tending to call into question the capacity of the testator; or (c) circumstances tending to show that the free will of the testator was overcome by acts of coercion or fraud: see Vout v. Hay, [1995] 2 S.C.R. 876 at para. 25.
[53] Suspicious circumstances in any of the three categories will affect the burden of proof with respect to knowledge and approval, and if the circumstances reflect on the mental capacity of the testator, the burden with respect to testamentary capacity.
[54] Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of those issues must be proved in accordance with the civil standard of proof on a balance of probabilities: Vout v. Hay, supra, at para. 27.
[55] In the instant case, there are numerous suspicious circumstances surrounding the making of the May 21, 2012 Will including:
(a) The May 21, 2012 Will was prepared at a time when the Deceased was of questionable capacity. Although he was no longer confused when he was discharged from the hospital on April 20, 2012, he continued to show delusions (although shakable). Dr. Kenneth Shulman who gave evidence with respect to a retrospective assessment of the Deceased’s testamentary capacity was of the view that given the Deceased’s cognitive vulnerability (delirium) that was demonstrated during the early part of his admission to the hospital in March, the Deceased would have been very vulnerable to any influences that may have been exerted following his discharge from the hospital on April 20, 2012; (b) There was no capacity assessment of the Deceased at the time of the execution of the May 21, 2012 Will; (c) None of the witnesses to that will had any discussions with the Deceased about his assets or those who would be considered to take under his will; (d) The will is typed: the Deceased did not own a computer or a typewriter or the means to create a typewritten document; (e) There is no evidence as to the instructions given by the Deceased for the preparation of the will or to whom such instructions were given; (f) There is no evidence from Joy Vassal. Although some suggestion was made that she is in Africa, there is no direct evidence as to why she was not able to attend at the trial or why her evidence could not have been presented in some other form. Her evidence would have been of importance as her identification stamp appears on the will along with her signature. No one witnessed her signing the will in any capacity. Further, given her obvious involvement in the preparation and execution of the will, and that she apparently only saw the Deceased on this one occasion, her evidence about the discussion and preparation of the will would have been of significance. (g) Norma was the Deceased’s caregiver for less than a month after the Deceased’s release from the hospital on April 20th. She had not known him before that date and yet less than one month later, is a 10% beneficiary of his estate in accordance with the May 21, 2012 Will. (h) The May 21, 2012 Will sets out a radical change of beneficiaries. In the 1999 Will the Deceased left everything to Tom and on March 30, 2012, he confirmed to Dr. Yousef that he was leaving his estate to Tom and no one else; and yet the May 21, 2012 Will leaves nothing to Tom and instead gives everything to others, including a caregiver of less than two months; (i) The May 21, 2012 Will is a radical departure from the estate plan that the Deceased told his doctor about only a month before; (j) The Deceased gave mixed messages to Guilio, Ed and John Bernardo as to a new will that he stated he would be signing. In each case, he referred to different beneficiaries; (k) A letter dated 21, 05, 12 which apparently accompanied the May 21, 2012 Will raises further questions. It is signed by the Deceased and appears to be witnessed by Michael and Bryan. Bryan testified about signing this letter as a witness but Michael provided no evidence about it although his signature appears on the document. There is no evidence as to how and when this letter was prepared. Nor is there any evidence that the Deceased gave instructions to prepare this letter. It is typewritten and yet the Deceased did not have a computer or a typewriter. The letter appears to be a justification as to why the Deceased was not going to leave anything to Tom. It sets out a number of complaints that he had about Tom and ends the letter with a statement, “I don’t trust Tommy anymore!”. It should be noted that the Deceased in his lifetime never referred to Tom as “Tommy” although that is the description in this letter. Bryan testified that he thought the letter was part of the will and the Deceased did not mention its contents.
Position of the Applicant
[56] The Applicant submits that in terms of testamentary capacity the court should look at different phases of the Deceased’s life. Prior to his hospitalization in March 2012, he had been taking care of himself, paying bills, collecting rents, and depositing moneys into his bank account without any involvement by Tom. He was clearly aware of his financial circumstances.
[57] The next phase was the deterioration of the Deceased’s mental state to the extent that he was involuntarily committed to the psychiatric ward in March 2012. At that time, he was clearly delusional. However, while hospitalized, he improved rapidly. He did have his ups and downs but generally he became lucid and coherent. While in the hospital, his CT scan was normal and showed some level of cognition. The hospital note of March 30, 2012, recognizes that he was “competent financially” and able to assess his financial capacity. He knew that Tom had his Power of Attorney and that Tom was to inherit his house.
[58] Dr. Yousef thought he was capable enough to be discharged on April 20, 2012, with arranged support in place. He was no longer confused and his delusions were “shakable”.
[59] The change to his Power of Attorney in January, 2012 indicates rational thought even though his mental condition was taking a turn for the worse.
[60] As for the May 21, 2012 Will, the Applicant submits that the real issue is whether the Deceased was aware of his assets and knew what he was doing. When the will was executed, Michael and Bryan were told that they would be witnesses to the will. The Deceased read the will out loud, and he signed the will in their presence. The Deceased told them not to tell anyone about it. Neither witness really knew each other and both said that the Deceased appeared to be fine that day. Accordingly, the requirements of s.4 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 were met.
[61] The Applicant submits that at the time of execution of the May 21, 2012 Will, there was no indication of mental decline. It is apparent from the contents of the accompanying letter that the Deceased was aware of his assets: his house, money available in his bank account, and cash on hand. That letter shows awareness of his finances. It also shows the grievances he had towards Tom and the justification in his mind for changing his will. It mentions a 2005 fire in the Deceased’s home and an inheritance of ½ of $31,000 and a $3,000 loan from Tom in 2010: facts that were known for the most part only by the Deceased.
[62] The Applicant submits that the evidence shows that Guilio, Louie, and Franc were longtime friends who, in recent years, were increasingly involved in the Deceased’s life. They were seeing him virtually every day whereas Tom’s visits were less frequent. The Deceased had expressed his upset with Tom over a number of matters. On the other hand, the Deceased was appreciative of the kindness and support given to him by those looking after him, including Norma, Guilio, Louie, and Franc. Thus, there was a clear motivation for the Deceased to change his will and recognize these individuals.
[63] When the Deceased was re-admitted to the hospital on June 1, 2012, Dr. Herzog noted some degree of confusion as to the year and about his Power of Attorney, but, as Dr. Shulman pointed out, no formal cognitive screening was done at that time and is short on detail about the Deceased’s cognition or beliefs about his estate on May 21, 2012.
[64] On this evidence, the Applicant submits that the Deceased, when he executed the May 21, 2012 Will, had the requisite testamentary capacity and had knowledge of and approved its contents.
Testamentary Capacity
[65] The Applicant has the onus of proving that the Deceased had testamentary capacity on May 21, 2012 and the burden is said to be a high one: Hall v. Bennett Estate, 64 O.R. (3d) 191 (C.A.) at para. 15.
[66] To establish the mental capacity necessary to make a valid will it must be shown that the testator had a sound and disposing mind:
(a) the testator must understand the nature of the will and its effects; (b) the testator must understand the extent of the property of which he is disposing; (c) the testator must have the ability to remember the persons that might be expected to benefit, and comprehend and appreciate the claims that may be made by others that the testator is excluding.
[67] The medical records provide substantial evidence that, in the last two years of his life, the Deceased was extremely ill, and suffered from delirium, hallucinations, delusions, confusion and drug abuse. Two months prior to his death, he was involuntarily confined in the psychiatric ward at the Humber River Hospital.
[68] The records during his confinement report numerous episodes of hallucinations, delusions and confused thought. The History and Progress Notes provide evidence that the Deceased acknowledged that he heard voices in his head, held the delusion that one member of the hospital staff was going to marry him and take him home to care for him. He was often disoriented to time and place.
[69] The Deceased may have been suffering from delusions at the time of the execution of the May 21, 2012 Will that could have affected his testamentary dispositions. The letter which accompanies that will is basically a tirade against Tom. The Deceased had from time to time voiced criticism of Tom to his friends. The Deceased apparently believed that Tom wanted to put him into an old age home. The evidence indicates that Tom never said this to anyone and had no intention whatsoever of putting him into an old age home. Tom in fact thought that the Deceased would not survive in a nursing home. The Deceased apparently believed that Tom wanted to terminate Norma’s services. Tom never said this and had no intention of doing so. The Deceased also stated that Tom said that he did not have enough money to continue to pay Norma. Tom never said this. Tom gave evidence that there was in fact enough money to continue to pay Norma’s salary and it was never a problem.
[70] There is no evidence as to how this letter came about: who created it and why it was prepared. Although it bears the Deceased’s signature, there is no evidence that anyone asked any probing questions about its contents such as the basis of the Deceased’s beliefs that Tom intended to put him in a nursing home or that he would no longer be paying Norma; or why Tom and Louie were being excluded as beneficiaries.
[71] In other words, there was no evidence of anyone probing into the Deceased’s testamentary capacity, which in this case, because of the Deceased’s prior delusional thinking, would have been essential to confirm that the May 21, 2012 Will was the “product of a sound and disposing mind”. The “mere capacity to communicate testamentary wishes is not determinative” of testamentary capacity: see Hall v. Bennett Estate, supra at paras. 14-18.
[72] Of importance, the Deceased states towards the end of this letter that, “I had many thoughts going thru my head at this point.”
[73] As no one has testified as to how this letter came about, we do not know the nature of the Deceased’s thoughts being referred to in this letter. There is an absence of evidence as to what questions were asked and instructions taken.
[74] At the time that the Deceased signed the May 21, 2012 Will there is no evidence that anyone inquired into or explored whether the statements in the accompanying letter were distorted because of delusional and cognitive problems.
[75] In these circumstances, it cannot be said that there is any clear and consistent rationale for the significant change in the Deceased’s May 21, 2012 Will. The Applicant has not met the burden of proving the Deceased had the requisite testamentary capacity.
Knowledge and Approval
[76] The onus is on the Applicant to prove that the Deceased had knowledge of and approved of the contents of the May 21, 2012 Will. It must be proven that the testator realized what was in the will and agreed that was what he wanted.
[77] Just two months prior, on March 30, 2012, while the Deceased was hospitalized, he advised Dr. Yousef that Tom was the sole beneficiary in his will and would be receiving his house. The May 21, 2012 Will makes a significant departure from that statement of intention.
[78] Whereas the 1999 Will was handwritten by the Deceased himself, it is clear that he could not have prepared the May 21, 2012 Will as he did not have a computer or printer or typewriter.
[79] There has been no evidence provided by the Applicant regarding the instructions for or preparation of the May 21, 2012 Will; whether the instructions came from the Deceased or someone else, whether the will was explained to the Deceased, or that the Deceased understood the contents.
[80] An important and material witness to the events who could have shed some light on this issue is Joy Vassal. She not only was present at the time of the execution of the will, but her stamp and signature also appear on the document. She had attended at the house apparently for the purpose of engaging in prayer with the Deceased and the May 21, 2012 Will seemed to emerge out of that occasion.
[81] The degree of suspicion surrounding the making of the May 21, 2012 Will is such that it has a serious impact on whether the burden of proof has been met. In this regard, Cullity J. in Scott v. Cousins, [2001] O.J. No. 19 (SCJ) at para. 47 stated:
Once the notion of suspicious circumstances is extended to any evidence from which a lack of knowledge and approval, or testamentary incapacity, can be inferred, it follows that the evidence may do more than simply displace the presumption on which the propounder of the will may be able to rely. Depending upon the strength of the inference to be drawn, it may also affect the weight of the evidence required if that person is to satisfy the legal burden of proving knowledge and approval or capacity on the balance of probabilities. This is my understanding of the Supreme Court’s endorsement of the statement of Ritchie J. in MacGregor v. Ryan, [1965] S.C.R. 757 at para. 766:
The extent of proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case.
[82] It is not sufficient to speculate that Joy Vassal is in Africa doing missionary work. There was no reasonable explanation given for the failure to adduce any evidence from her. Although it was open to either party to obtain the evidence, the Applicant had the onus of proof that the Deceased had knowledge and approved the contents of the will and in the absence of evidence from Joy Vassal, that burden of proof has not been satisfied.
Conclusion
[83] For these reasons:
(a) There are suspicious circumstances surrounding the making of the May 21, 2012 Will; (b) The Applicant has not met the burden of establishing that the Deceased had testamentary capacity at that time; (c) The Applicant has not met the burden of establishing that the Deceased had knowledge of or approved the contents of that will.
[84] Accordingly, the May 21, 2012 Will should not be admitted to probate. The Application is dismissed. If the parties cannot otherwise agree, costs are to be addressed by way of written submissions: the Respondent within 30 days; the Applicant within 15 days thereafter; and reply, if any, within a further 7 days.