COURT FILE NO.: CV-11-3278-00 DATE: 2017 03 02
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Julian Birtzu and Valentin Birtzu Peter M. Callahan, Counsel for the Plaintiffs Plaintiffs
- and -
Constance McCron and the Estate of Constantin Birtzu Ian M. Hull and Doreen Lok Yin So, Counsel for the Defendants Defendants
REASONS FOR JUDGMENT
Bloom, J.
I. Introduction
[1] The Plaintiffs seek the following relief in the action before me: (1) an order setting aside the will of Constantin Birtzu signed January 24, 2006 under which he left his entire estate after payment of debts to his daughter Constance McCron, who was also named the sole executor; (2) a declaration that the Estate of Constantin Birtzu (hereinafter “Constantin”) is the beneficial owner of the property known as 51 Samson Crescent, Toronto, Ontario as to at least a one third share on the basis of a constructive trust, or in the alternative an order that the full amount paid by Constantin toward an addition to that premises be repaid by Constance McCron to the estate; (3) an accounting of assets of Constantin disposed of by Constance McCron both before and after his death; (4) an order directing how the estate is to be distributed; and (5) an order that pre-judgement and post-judgement interest be paid from the share of the estate to which Constance McCron is entitled, to the Plaintiffs on amounts found owing to them from the estate.
II. Facts Not in Dispute
[2] Constantin was born on March 4, 1923. He and his wife, Maria Birtzu, had three children, Julian Birtzu, Valentin Birtzu, and Constance McCron (“Connie”). On June 19, 2005, Maria passed away. On April 29, 2009, Constantin passed away survived by his three children and 7 grandchildren on the date of his death, namely Nicole Swift, Rebecca Birtzu, Michael Birtzu, Gregory Birtzu, Ashley McCron, Andra McCron, and Alysa McCron. [3] On August 18, 2011 the action at bar was commenced. [4] Karl Schwind is Constantin and Maria’s life-long friend as well as the family’s. [5] On February 12, 1976 Constantin executed a will under which he appointed his wife as his estate trustee, failing which Julian would be so appointed. He left his estate to his wife, and if she predeceased him, to his three children equally. [6] On September 4, 1990, Constantin executed a new will. It named Maria as the Estate Trustee and Connie as the alternate Estate Trustee. In the event that Maria predeceased Constantin, Connie is directed to hold Constantin’s home, together with all the furniture therein, for her own benefit for ten years; sell the home and divide the proceeds among the grandchildren of Constantin; and divide the residue of the estate among those grandchildren. [7] In or about 1999, Maria’s health began to decline as a result of Alzheimer’s disease. On February 14, 2003 she was admitted to a nursing home known as Extendicare Guildwood. Constantin independently arranged for the sale of the matrimonial home in which they had lived at 65 Kencliff Crescent in Toronto. The sale took place on September 25, 2003. [8] On or about October 5, 2003, Constantin moved to a basement apartment located at 7 Saunders Road in Scarborough in order to live near Maria’s care facility. [9] In or about June of 2005, Constantin moved to Connie’s home located at 51 Samson Crescent in Toronto where he resided with her and her family until his death. Neither Julian nor Valentin objected when they were advised of Constantin’s plans to move into Connie’s Samson home. [10] To accommodate Constantin an addition was built to the Samson home. Neither Julian nor Valentin objected to the construction of the addition which began in February of March of 2005. [11] Julian believed that Constantin was well enough to manage his own financial affairs in 2002. [12] Medical records indicate that Constantin began to show signs of early dementia and short term memory loss in or about June of 2002. Dr. Lawrence Zoberman was Constantin’s family doctor for four years before he noticed that Constantin was exhibiting signs of early dementia and short term memory loss in or about June of 2002. [13] Connie and her family lived approximately 10 kilometres away from Maria and Constantin while they lived at the Kencliff home. [14] Connie accompanied Constantin to various medical appointments as did her daughter, Alysa. Connie assisted Constantin by driving him to various locations, including but not limited to medical appointments and the bank, after he was no longer able to renew his driver’s license in or about 2003. [15] On April 8, 2004, Constantin’s car, a 2000 Subaru, was transferred to Connie for an amount of $ 10.00. [16] Connie was Constantin’s primary caregiver during the latter years of his life. Alysa also assisted Connie in her care of Constantin during the latter years of his life. [17] Julian lived with Constantin for one year during the 1970’s. Julian and his family lived in the west end of Toronto while Constantin and Maria resided in the Kencliff home in Scarborough during the later part of the 1990’s. Julian lived a separate life from that of his parents while he resided in the west end of Toronto. Julian and his family lived in Mississauga while Constantin lived with Connie. Constantin did not wish to live with Julian after his move to Connie’s home. Julian did not witness any acts of coercion by Connie in relation to the execution of the 2006 will. [18] In 1998 Valentin lived with Constantin and Maria in the Kencliff home. Valentin visited Constantin no more than two times every couple of months while Constantin lived in the basement apartment. [19] Valentin resided in Oshawa, Ontario while Constantin lived with Connie. [20] Valentin visited Constantin no more than 10 times in 2006, and less frequently thereafter. [21] In or about February of 2004 Constantin gave a gift of $ 10,000 to Valentin and at that time Valentin believed that Constantin had the requisite capacity to give him money. [22] On April 29, 2009 Constantin died with cash assets held in various bank accounts, and without other personal property of significant value. [23] In 2003 Connie had not been involved with Constantin’s banking transactions other than in driving him to the bank.
III. The Issues
[24] The case at bar raises four principal issues and a number of sub-issues. It is useful to understand what they are before embarking on a detailed discussion of the governing principles and of the application of those principles to the evidence. [25] The key issue is the validity of the 2006 will. That matter in turn raises three sub-issues:(a) whether the action was commenced within the applicable limitation period; (b) whether the Plaintiffs had standing to bring that action; and (c) whether the will was valid having regard to the challenge by the Plaintiffs on grounds of lack of testamentary capacity and undue influence. [26] A second issue raised is the claim that the estate was entitled to a declaration of entitlement to a least a one third beneficial share of the Samson property by way of constructive trust, or alternatively an order that Connie repay to the estate the monetary contribution of Constantin to the addition to the Samson property. The analysis of this question raises two sub-issues: (a) whether the question need not be answered because its answer has no practical effect on the outcome of the action; and (b) the governing principles relating to the finding of a constructive trust and their application to the evidence. [27] A third issue is the determination of the entitlement of the Plaintiffs to the accounting they seek regarding the disposition by Connie of her father’s assets both before and after his death. This issue raises two sub-issues: (a) whether the question need not be answered because its answer has no practical effect on the outcome of the action; and (b) the merits of the claim. [28] The last issue is how the estate is to be distributed.
IV. The Validity of the 2006 Will
A. Governing Principles
(i) The Applicable Limitation Period
[29] The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B provides:
Basic Limitation Period
Basic limitation period 4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.
Discovery
5. (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).
[30] In Leibel v. Leibel, 2014 ONSC 4516 at paras 50 to 53 Justice Greer discussed the application of those provisions to a challenge to the validity of a will:
50 In my view, the date from which the limitation under the Act began running, was the date of Eleanor's death, June 4, 2011. See: Lawless v. Anderson, 2011 CarswellOnt 626 (C.A.) paras. 22 and 23 respecting the discoverability principle and how it is applied by the Court. As was noted by Mr. Justice D.M. Brown, at first instance in that case, at para. 58, 2010 ONSC 2723, "Limitation periods do not begin to run when one determines that a claim is winnable or viable; they begin to run when one discovers the material facts necessary to plead a reasonable cause of action." Blake had enough material facts by July 21, 2011 to commence an action.
51 It seems to me that Blake, by early September 2013, decided that he had not received enough benefit under Eleanor's Wills and he did not want to share the residue with Cody. He therefore launched his Application.
52 In my view, with the passage of the new Act in 2002, the Legislature placed a two-year limitation on the bringing on of actions, subject to the discoverability principle, in order to prevent exactly what Blake is trying to do, that is, circumvent the limitation by claiming, late in time, that the 2011 Wills were invalid. To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would put all Estate Trustees in peril of being sued at any time. There is a reason why the Legislature replaced the six-year limitation in favour of a two-year limitation.
53 Blake's Application dated September 5, 2013, is more than two years after Eleanor's death and I find it to be statute-barred.
(ii) Standing
[31] The issue of standing has been raised by the Defendants. They contend that the Plaintiffs lack a financial interest in the matter requisite to give them standing. The Plaintiffs respond that the standing issue was not pleaded, and that they had the requisite standing either under the 1976 will, under an assignment of their children’s rights under the 1990 will, or on an intestacy. In order to address the standing issue as the parties have so framed it, I must set out the governing principles. [32] In a leading textbook on civil procedure, Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed (Markham, Ontario: LexisNexis Canada Inc., 2014) at para 5.89 the learned authors set out the following principles relative to pleadings:
First, pleadings define the issues for the action, both those that are in controversy and also those that are not disputed. The parameters of the action are defined by the issues raised by the pleadings, and a party is bound by his or her pleadings. A party is precluded at trial from leading evidence that is inconsistent or irrelevant when measured against the pleadings, and subject to the court’s power to grant amendments, a party cannot rely on a claim or defence not pleaded.
[33] Rule 26.01 of the Rules of Civil Procedure, addresses the amendment of a pleading:
General Power of Court
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.
[34] Rule 5.03(3) of the Rules of Civil Procedure addresses assignments of choses in action:
Claim by Assignee of Chose in Action
(3) In a proceeding by the assignee of a debt or other chose in action, the assignor shall be joined as a party unless, (a) the assignment is absolute and not by way of charge only; and (b) notice in writing has been given to the person liable in respect of the debt or chose in action that it has been assigned to the assignee. R.R.O. 1990, Reg. 194, r. 5.03 (3).
[35] Rules 2.01 and 2.03 of the Rules of Civil Procedure bear upon the effect of non-compliance with the Rules:
Effect of Non-Compliance
2.01 (1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court, (a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or (b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. R.R.O. 1990, Reg. 194, r. 2.01 (1). (2) The court shall not set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed. R.R.O. 1990, Reg. 194, r. 2.01 (2).
Court May Dispense with Compliance
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time. R.R.O. 1990, Reg. 194, r. 2.03.
[36] Rule 75.03 of the Rules of Civil Procedure provides as follows:
Objection to Issuing Certificate of Appointment
Notice of Objection
75.03 (1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a financial interest in the estate may give notice of an objection by filing with the registrar or the Estate Registrar for Ontario a notice of objection (Form 75.1), signed by the person or the person’s lawyer, stating the nature of the interest and of the objection. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 16; O. Reg. 575/07, s. 1.
[37] S. 47(1) of the Succession Law Reform Act states:
Distribution of Kin
Issue
47. (1) Subject to subsection (2), where a person dies intestate in respect of property and leaves issue surviving him or her, the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her issue who are of the nearest degree in which there are issue surviving him or her.
(iii) The Applicable Procedures and Burdens of Proof
[38] In Scott v. Cousins [2001] O.J. 19 at para 39 (Sup Ct) Justice Cullity set out the allocation of the burdens of proof in cases in which a will is attacked for lack of testamentary capacity and undue influence:
The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:
- The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
- A person opposing probate has the legal burden of proving undue influence.
- The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
- In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption. "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." (at page 227)
- This presumption "simply casts an evidential burden on those attacking the will." (ibid.)
- The evidential burden can be satisfied by introducing evidence of suspicious circumstances - namely, "evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder." (ibid.)
- The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.
- A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will: "... It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect [to] and [sic] fraud and undue influence remains with those attacking the will." (ibid.)
(iv) The Principles Governing Testamentary Capacity
[39] In the leading decision of Banks v. Goodfellow, [1861-73] All E.R. Rep. 47, Coburn, C.J. defined testamentary capacity in the following terms at pp 56 and 57:
...It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.
[40] Justice Corbett in Johnson v. Huchkewich, [2010] O.J. No. 4586 (Sup Ct) at paras 34, 35, and 46 elaborated on the effect of mental disorder on testamentary capacity:
[34] The applicant notes that testamentary capacity is not the same thing as the capacity to manage one’s property or the capacity to confer a power of attorney. [18] I agree. This does not mean the test is “higher” for testamentary capacity; rather, it is different. Should this point need illustration, none better can be found than Justice Stach’s thoughtful discussion in Palahnuk v. Palahnuk Estate. [19] Justice Stach upheld a will made by an 80 year old testator who had been found incapable of caring for her own person or for her own property. The testator was cared for by a niece, under an agreement with the Public Guardian and Trustee. In coming to this conclusion, Justice Stach found:
The requirements for a testator to have a “sound disposing mind” in order to make a valid will include the following:
- The testator must understand the nature and effect of a will;
- The testator must recollect the nature and extent of her property;
- The testator must understand the extent of what she is giving under the will;
- The testator must remember the persons she might be expected to benefit under her will;
- The testator, where applicable, must understand the nature of the claims that may be made by a person she is excluding from the will. [20]
[35] Isolated memory or other cognitive deficits do not establish lack of testamentary capacity:
Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property he was bequeathing, the manner of distributing it and the objects of his or her bounty. [21]
[46] Care must be taken in reading the physicians’ clinical notes or in interpreting their diagnoses. Diagnosing someone as having “dementia” does not mean the person is “demented”. Diagnosing someone as having Alzheimer’s does not mean the person lacks capacity (though it may foretell a loss of capacity if the disease progresses as expected). To leap from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning. I reject this line of argument.
(v) The Principles Governing Undue Influence
[41] Justice Cullity in Scott v. Cousins, supra at paras 112 to 115 described what in law constitutes undue influence:
Undue influence
112 It is settled law that undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence - or persuasion - on a testator. It is also clear that the possibility of its existence is not excluded by a finding of knowledge and approval.
"To be undue influence in the eye of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by [strong relationships] to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence." (Wingrove v. Wingrove (1885), 11 P.D. 81 (P.D.), at page 82.)
113 The presumptions in favour of undue influence that arise out of certain family relationships and that are applied to various kinds of transactions inter vivos play no part in the law of wills. The persons against whom the presumptions arise in such transactions are typically those that a testator might naturally wish to share in the estate. Such persons are entitled to press what they perceive to be their moral claims. The following comment in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184 on the passage quoted above from Wingrove v. Wingrove is, I believe, an accurate statement:
"Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else's. There is no undue influence unless the testator if he could speak his wishes would say "this is not my wish but I must do it."
114 In determining whether undue influence has been established by circumstantial evidence, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. The degree of pressure that would be required to coerce a person of Reta's age and state of mental confusion is likely to be significantly less than that which would have the same effect on persons in full possession of their faculties. Dr. Shulman testified to Reta's vulnerability in this respect. The testatrix does not have to be threatened or terrorized; effective domination of her will by that of another is sufficient: Re Crompton; Crompton v. Williams, [1938] O.R. 543 (H.C.), at page 583. This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. Other matters that have been regarded as relevant, within limits, are the absence of moral claims of the beneficiaries under the will or of other reasons why the deceased should have chosen to benefit them. The fact that the will departs radically from the dispositive pattern of previous wills has also been regarded as having some probative force.
115 Most of the matters I have referred to are present to some extent in this case. If the doctrine of suspicious circumstances had any part to play in the analysis of this issue, I would find that the circumstances certainly arouse my suspicion. As I have indicated, the doctrine, as such, has no application to undue influence; the question is whether, on the basis of all of the evidence, I am satisfied that the dispositive provisions of the will were procured by undue influence. By itself opportunity to do this is not sufficient. However, certainty or proof beyond reasonable doubt is not required. The standard is the civil standard and it may be satisfied by circumstantial evidence.
B. Application of those Principles
(i) The Limitation Period
[42] The limitations issue before me is whether the action at bar was commenced within the two year limitation period prescribed by the Limitations Act, 2002. [43] Although the Defendants also argued that the Plaintiffs had not even pleaded undue influence in their statement of claim, I reject this argument. In paragraph 26. of the statement of claim the Plaintiffs state that they “dispute the validity of the 2006 Will.” That paragraph goes on to refer to an absence of a “sound mind” at the date of the will, but in my view there is no reason to construe the dispute of the validity of the will as limited to an allegation of lack of testamentary capacity. [44] In The Law of Civil Procedure in Ontario, 2d ed, supra at para 5.109 the learned authors state, “It is not necessary for a pleader to put a legal name to the claim or defence or to plead a formula of legal elements.” The language of the statement of claim captured both lack of testamentary capacity and undue influence. [45] Moreover, the proceeding was conducted in a way which did not prejudice the Defendants in their defense against the claim of undue influence; therefore, I would have granted an amendment under Rule 26.01 (reproduced above) to the statement of claim to include an explicit plea of undue influence, had such an amendment been necessary. [46] I will now address the substance of the limitations argument. The Defendants have raised the limitations issue, and for that reason I will set out their argument first. They contend that the limitation period expired before the statement of claim was issued on August 18, 2011. Specifically, the Defendants have argued in the alternative that the limitation period expired two years after the death of Constantin on April 29, 2009; that it expired two years after exhibit 15, the letter of July 17, 2009 forwarded on behalf of Julian Birtzu by his solicitors to Mr. Allan Keith, solicitor for Connie McCron; or in the third alternative that it expired two years after July 22, 2009, the deadline by which according to that letter Connie was to turn over the estate assets to Julian or face legal action. [47] The Plaintiffs response is that the limitation period in the case at bar is governed by s. 5(1) (b) of the Limitations Act, 2002 and ran from July 8, 2010, the date of exhibit 24, being the letter of Allan Keith denying his client’s consent to release the medical records of Constantin for the 5 years preceding death. The Plaintiffs argue that until the refusal to release the medical records demonstrated Connie’s duplicitousness in procuring the will, the Plaintiffs did not have a cause of action triggering the application of s. 5 (1)(b). In the alternative they argue that the limitation period ran from the winter of 2010, when Julian, as a reasonable person within s. 5 (1)(b), would have come to the conclusion that he had a cause of action based on his recollections of incidents showing his father’s dementia. In either case, contend the Plaintiffs, the statement of claim was issued within the mandatory two years. [48] On the basis of evidence which I will now review, I have come to the conclusion that on the application of s. 5(1) (b) the limitation period expired at latest two years after July 22, 2009, and thus the action is statute barred, since the statement of claim was not issued until August 18, 2011. [49] The parties agree that the limitations argument is to be analyzed based on ascribing the knowledge of Julian Birtzu to both Plaintiffs. In exhibit 15 dated July 17, 2009 Julian’s solicitor informs Connie’s that “Our client advises that Constantin Birtzu had suffered from dementia for many years prior to his death on April 29, 2009. Therefore, as Mr. Birtzu did not have capacity to execute a Last Will and Testament on January 24, 2006 the said Will cannot stand.” The letter also stated that unless Connie turned over the assets of the estate by July 22, 2009, Julian “would have no other option but to commence legal proceedings.” [50] It is clear to me that under s. 5(1) (b) at latest the limitation period started to run on the date of that deadline, predicated as it was on the knowledge of Constantin’s dementia. The Plaintiffs argue that the running of the limitations clock was postponed, because on July 21, 2009 in exhibit 16 Mr. Keith provided to Julian’s lawyer a copy of a letter from Constantin’s family doctor, Lawrence Zoberman, dated July 25, 2006 which stated that, in his opinion, Constantin was mentally competent to designate a power of attorney for financial and medical purposes. The Plaintiffs argue that over time Julian recollected events such as loss of consciousness, lapses of memory, and confused speech on the part of Constantin; and that these recollections finally prompted the inquiry which resulted in the denial of the medical records which ripened the cause of action under s. 5(1)(b). I reject that line of reasoning; once the Plaintiffs were aware that the 2006 will denied them any gift and that the deceased suffered from dementia, as reasonable persons they ought to have known of their claim. [51] It may well be that the limitation period commenced running on the death of Constantin as envisaged in Leibel v. Leibel, supra, but in my analysis I have reviewed the matter in a more favourable light to the Plaintiffs. Based on either view, the action is statute barred. I will, however, go on to examine a number of other important issues, including the validity of the contested will.
(ii) Standing
[52] Exhibit 25 is a document which purports to assign to the Plaintiffs the rights of their children under the 1990 will. It purports to be effective as of August 11, 2011. I accept the evidence of Valentin Birtzu that it was signed at the behest of the Plaintiffs by their children. There is agreement by the parties that it was executed in December of 2015 and formal notice of it was given in the same month. [53] The Defendants argue that the Plaintiffs lacked standing to bring the action at a bar, because they had no financial interest under the 1990 will which would be in force if the 2006 will were held invalid. Further, the Defendants argue that the assignment document did not solve this lack of standing, because it was invalid as made after the limitation period had run; was invalid as back-dated; was defective because timely notice was not provided as required by Rule 5.03(b); and was not validated by the obtaining of an order under Rule 11.02. [54] I reject the Defendants’ standing arguments. The test for standing as reflected in Rule 75.03 is that a Plaintiff must appear to have a financial interest in the estate; the test requires simply an appearance of a financial interest not proof of one. The Plaintiffs appear to have a financial interest in the estate, since the 1976 will made each of them beneficiaries and they would also be beneficiaries on an intestacy by virtue of s. 47(1) of the Succession Law Reform Act. Under either of those two possible results, the Plaintiffs would have a financial interest; moreover, those two results were at the commencement of the action possible outcomes. Therefore, the Plaintiffs satisfy the standing test.
(iii) The Issues of Testamentary Capacity and Undue Influence
[55] The heart of this proceeding is the challenge to the validity of the 2006 will by the Plaintiffs. Their argument is captured by paragraph 34. of their written argument which reads as follows:
The Plaintiffs claim that the 2006 Will is invalid for two reasons. First, Constantin was not able to understand or appreciate the nature and consequences of entering into the 2006 Will. This is evidenced not only by the diagnosis of dementia, and the treatment of that along with additional mental instabilities, including depression, but also by the fact that he completely shut out both of his two sons, as well as his 7 grandchildren, from sharing in his Estate without any reason for doing so, and without any explanation being given. Second, Constantin was unduly influenced by Connie, who took advantage of him while he was vulnerable and, shuttling him off to her lawyer, caused him to execute a very brief Will which left her in full control of his Estate, and entitled to the full benefit thereof.
[56] The Plaintiffs also argue at paragraph 39. of their written submissions that they presented at trial “more than ample evidence of suspicious circumstances as to rebut the presumption of” testamentary capacity. [57] The Defendants argue in paragraph 301. of their submissions that “subject to the issue of Constantin’s dementia, the remaining suspicious circumstances…are moderate, and consistent with realities of Constantin’s life.” In paragraphs 302. to 305. they answer the allegation of lack of testamentary capacity by asserting that the decision to leave the entire estate to Connie was based on a cogent rationale, namely “gratitude for Connie’s care, and for allowing him to live in her home”. [58] Respecting the allegation of undue influence, I have already addressed the pleading issue raised by the Defendants. As to the merits, the Defendants argue that the Plaintiffs have not discharged their evidentiary onus to prove undue influence by Connie on a balance of probabilities. In paragraph 343. of their submissions they state:
[T]he degree of pressure that would be required to coerce an elderly person, in a state of mental confusion, is likely to be significantly less than that which would have an effect on a person in full possession of their faculties…, the Plaintiffs have failed to adduce even one illustration of evidence that may suggest any pressure on Connie’s part.
[59] I have concluded that, despite the Plaintiffs’ discharge of the evidential burden to prove suspicious circumstances, the Defendants have proven testamentary capacity in accordance with the required burden of proof; and that the Plaintiffs have not proven undue influence in accordance with the applicable burden of proof. I intend now to explain those conclusions. To do so I will make the necessary findings of fact from the evidence, and apply the principles of law examined above to those facts. [60] I have considered all of the evidence on the issues of testamentary capacity and undue influence. However, the key evidence on those issues is the testimony of the following witnesses: (1) Julian Birtzu; (2) Lynne Birtzu: (3)Valentin Birtzu; (4) Dr. Lawrence Zoberman; (5) Allan Keith; (6) Connie McCron; (7) Karl Schwind; (8) Derrick Norman; and (9) Dr. Kenneth Shulman. I intend to address the evidence of each of those witnesses.
Julian Birtzu
[61] The witness testified that he believed that, while his father lived in the matrimonial home and the basement apartment, he was capable of handling his own finances. He testified that he believed that his father was self-sufficient while living in the apartment. [62] He further testified that he saw his father roughly once per month in 1999. In 2005 the rate may have been less. He saw him 3 times at most in 2006, once in 2007, once in 2008, and not at all in 2009. [63] He was aware that his father had not moved into Connie’s home under pressure from her. [64] His father had arguments with each of his sons, but nothing, in the witness’s view, would cause him to disown either son. [65] He visited his father about 20 times while he lived in the basement apartment. While his father lived there, he told Julian that he had fallen a couple of times. While living there, he broke into speaking German from English more than previously; German was a language he had spoken with his wife. [66] Connie and her daughters took his father to the doctor. They did not update Julian on his father’s medical condition or tell him that his father had been diagnosed with Alzheimer’s disease. [67] While in the basement apartment he lost his train of thought sporadically in speaking in Julian’s presence. [68] I accept this evidence as factually correct. It was logical and internally consistent.
Lynne Birtzu
[69] Lynne Birtzu, Julian’s wife, testified that while living at the apartment on one occasion Constantin could not remember who Julian’s and her grandson was. She also testified that while living there he lost his train of thought in speech and sometimes broke into German while speaking English. I accept this evidence. It was logical and uncontradicted.
Valentin Birtzu
[70] Valentin testified that after he moved to Lindsay (after 1999 and up to 2003) he saw his parents once or twice per month and sometimes less frequently because of his job. He saw his father more frequently when he was living in the basement apartment. [71] Just before his mother moved into the nursing home, in 2001 or 2002, his father was depressed. [72] Connie and her daughter, Alysa, assisted Constantin while he was still living in the matrimonial home and looking after his wife. [73] Constantin became more withdrawn and depressed when he lived in the apartment. Valentin visited his father in the apartment 10 to 12 times per year and stayed overnight a couple of times. His father became more forgetful while living there and sometimes wetted his bed. He also blacked out once while crossing a gas station premises during the period he lived at the apartment. [74] Connie did not report to him on his father’s medical condition, but did answer his questions on that subject. [75] His father told him that Connie and her husband were paying for the addition to their home. [76] His visits to his father after he moved to Connie’s home declined in frequency after his first year there. [77] His father never told him that he was displeased with him or his 2 children, or that he did not want to see them or Julian and his children. He knew of no reason why he and his children would inherit nothing under his father’s will. [78] His father was mentally competent to a point in 2006. He was mentally competent to give Valentin a gift of $10,000 in 2004 and $ 300 in 2006. [79] I accept Valentin’s evidence. He was straightforward in his testimony. Moreover, this evidence was logical.
Dr. Lawrence Zoberman
[80] Dr. Zoberman was Constantin’s family doctor. He testified with the aid of his notes. Dr. Zoberman testified that Constantin had early dementia by October 31, 2003. By January 8, 2004 he had mild dementia and was depressed because his wife’s health was deteriorating. His note of November 11, 2004 shows that Dr. Barsky, a psychogeriatrician at Scarborough General Hospital, had noted that Constantin had dementia and depression. I observe parenthetically that Dr. Barsky’s report of November 4, 2004 noted dementia of the Alzheimer’s type. [81] Dr. Zoberman’s notes of November 25, 2004 show that the dementia had progressed to the point where Connie was to dole out his medications because of his confusion in taking them. His note of July 7, 2005 shows that Constantin had moved in with Connie, and that, even though he had dementia, he had an appropriate response to his wife’s death, accepting it in view of her ill health. [82] His note of February 9, 2006 shows that the dementia was worsening. [83] He wrote a note on July 25, 2006 to Allan Keith, the lawyer who had drafted the 2006 will, stating that Constantin could grant a power of attorney for financial and medical purposes. He was able to write this note despite the dementia, because as of the date of the note the dementia was largely reflected only in memory loss and had not progressed further. The memory loss was reflected in the need for Connie to dole out the medications. Constantin still had the ability to understand big things; his dementia was not compromising his understanding of his needs regarding finances and medical health. [84] In cross-examination he testified that his note of February 23, 2007 showed that the dementia had deteriorated, and that he had delusions and paranoia which were not present before this appointment. [85] His evidence continued in cross-examination. He testified that Connie was at the appointments after she had started doling out the medications because of the worsening dementia. She would be present in the interview room, not at the examination. She would, therefore, have understood her father’s medical condition. [86] Continuing in the cross-examination, he testified that as of the mini-mental status examination of January 8, 2004 Constantin clearly had early dementia. As of the November 2004 appointment where Connie was told to dole out his medications, Constantin had confusion as a result of moderately severe or severe dementia. The November 11, 2004 notes record that Connie was present. Dr. Zoberman would have explained to her that her father was suffering from dementia and depression. [87] In continued cross-examination he testified that November 25, 2004 was the date that he felt that the dementia had deteriorated badly. At this appointment he explained to Connie that her father was suffering from dementia and likely he also mentioned depression. She was tasked with henceforth administering his medications. [88] From November 25, 2004 he would have been concerned that Constantin was not competent to appoint a power of attorney or make a will. At that date he was not competent to do either. [89] As of February 23, 2007 Connie would have known from him that Constantin was suffering from severe dementia. By November 2004 he would have made clear to her that he was suffering from dementia and depression. [90] Dr. Zoberman reminded the Court that he was a doctor not a lawyer. Further, he was not qualified by any ruling at the trial before me to give opinion evidence on testamentary capacity or capacity to appoint a power of attorney, questions which have an inevitable legal component. Therefore, while I accept that the witness was a truthful and reliable one, I do not rely on his opinions on whether Constantin was competent to appoint a power of attorney or make a will. I do, however, rely upon the medical observations and medical views he provided in support of those opinions.
Allan Keith
[91] It is not disputed that Mr. Keith was the lawyer who drew up the 2006 will; and that he was chosen by Connie. Further, it is also agreed that she accompanied her father to his office on both January 16, 2006 when he gave instructions, and on January 24, 2006 when the will was signed. [92] Mr. Keith testified about the events on January 24, 2006. He gave the original will to Constantin to review, and told him to take his time in doing so. Before it was executed, he asked him if he understood the contents of the will and if he had any questions about it. He did understand the will and had no questions. Mr. Keith and his secretary witnessed Constantin’s signature of the will. [93] Constantin demonstrated no bizarre conduct in his dealings with Mr. Keith; if he had, Mr. Keith would not have acted on the matter. Mr. Keith did not suggest the obtaining of a medical opinion regarding Constantin’s competency to make the will before he acted, because he felt that Constantin was competent. [94] Mr. Keith did not ask Constantin’s age at the time of the preparation of the will. He did not know that Constantin had Alzheimer’s disease when he acted on the will matter; nor did he ask if there was a prior will. Knowing that Constantin suffered from dementia and depression would have been important considerations in his decision whether to undertake the will matter. [95] Constantin did not need assistance with climbing the stairs when he arrived to sign the will. [96] I accept this evidence of Mr. Keith as truthful and accurate. His evidence was clear and without internal inconsistencies. I do not place any reliance on a memorandum to file from his secretary dated January 16, 2006 and marked as exhibit 41, because it is unclear to what extent the content came from Constantin.
Connie McCron
[97] The witness testified in examination-in-chief concerning her father’s mental condition. She stated that Dr. Zoberman never mentioned to her that her father had Alzheimer’s disease. Regarding the November 25, 2004 appointment with Dr. Zoberman, she stated that there was no discussion with Dr. Zoberman that she should dole out drugs for her father, nor was there a discussion of his having dementia. She also testified that in the period June 2005 to June 2007 she did not have discussions with Dr. Zoberman wherein he stated that he father had advanced dementia. She stated that in November of 2004 Dr. Zoberman said to her that her father had short term memory problems and that he would follow this issue. [98] In cross-examination she admitted to using her father’s bank card while he was in hospital after denying that she used it without his being present. She testified that her father never had dementia like her mother. He just had short term memory loss. He did not have cognitive difficulties until the end of 2008. [99] She agreed that when the 2006 will was made, neither Mr. Keith nor his secretary was told that Constantin had been suffering from dementia since 2002 because he was not suffering from dementia. [100] I do not accept the testimony of Connie concerning her father’s mental condition. I find that her credibility was fatally undermined by her denial of knowledge of her father’s dementia after the November 25, 2004 appointment with Dr. Zoberman. I have accepted his evidence of advising her of the dementia on that date, and his evidence that she would have understood from him from November 2004 that her father had dementia. I also draw support in my finding against Connie’s credibility from her denial of using her father’s bank card, until she was confronted by the inevitable in cross-examination in relation to its use while he was in hospital.
Karl Schwind
[101] The witness testified in examination-in-chief that he and his wife, Klara, were friends of Constantin and his wife. They often socialized before Maria’s illness. [102] His friendship continued with Constantin after the death of Maria. He spoke with Constantin at the basement apartment. Constantin told him that Connie was helping him and came to see him every day. [103] Mr. Schwind continued that he and his wife visited Constantin about once per month at the apartment. He observed no mental frailties in Constantin while he lived at the apartment. [104] When Constantin moved to Connie’s, Mr. Schwind and his wife visited Constantin about once per month there and maybe twice per month in the summer. That changed when Constantin got sick. [105] While Constantin was living in the basement apartment, he told the witness that he was going to move in with Connie. He told Mr. Schwind that his sons had had enough support from him, and that he was moving in with Connie and giving her everything. He did say at one point that he was going to leave everything to his grandchildren. He went back and forth as to what he would do; then he said that he would leave everything to Connie. [106] Constantin’s mental abilities started to weaken about a year and a half before he died; for example, he would ask a question and then ask the same question 15 minutes later. Before the end of 2007 he did not have mental frailties. His behaviour was not unusual. He was clean and well dressed. [107] He came to visit the witness on his own at the witness’s store when he was living at the apartment, and came with Connie when he was living with her. [108] There were arguments between Constantin and his 2 sons. He complained that they wanted his money. [109] As to the last 10 years of Constantin’s relationship with Connie, there were no incidents of conflict, and Constantin said that he felt well looked after when he was living with her. [110] In cross-examination the witness testified that he is not good with dates and never has been. He admitted that his memory was not as good as it once was. [111] He further stated that Constantin told him that he was very happy living with Connie. Constantin told him that he paid for the addition to Connie’s home, and did not loan the money for it to Connie. [112] He testified that Constantin deteriorated one year to one and one half years before his death; this deterioration took place while Constantin was living with Connie. [113] The witness was frank, logical, and calm. I accept his evidence with a caveat on the matter of dates. Respecting dates, I accept that his evidence was accurate within a reasonable margin of error, but on dates I will look for confirmation from other evidence.
Derrick Norman
[114] The witness testified that he was a neighbour of Connie’s. He stated that, when Constantin moved in with Connie, he would speak to the witness almost every day. After he moved in with Connie, the witness did not notice anything unusual about his mental abilities. He and the witness spoke English to each other. [115] The witness had fixed the carport at Constantin’s matrimonial home. While Constantin was living there he said that he was going to leave everything to Connie. [116] Mr. Norman’s evidence was straightforward and clear; I accept it.
Dr. Kenneth Shulman
[117] In a ruling at trial on January 25, 2016 I held that the witness was qualified to give certain opinion evidence. That evidence was to be a retroactive assessment of the testamentary capacity of Constantin and of his susceptibility to undue influence at the time of the execution of the will signed on January 24, 2006. Further, I ruled that his testimony was to be his evidence, although he was permitted to adopt in that testimony parts of his written report. [118] He testified in examination-in-chief that, if the note to file by Mr. Keith’s secretary and the note by Dr. Zoberman on Constantin’s capacity to appoint a power of attorney were accepted by me, then Constantin had testamentary capacity despite his dementia. For reasons already explained I put no reliance on either document. [119] The witness further testified that capacities are time specific. He stated that a person’s having dementia does not itself tell you anything about his capacity to make a will. Simply because a person has dementia does not mean that he or she is incapable of making a will. If, as asserted in the memorandum to file by Mr. Keith’s secretary, the testator’s daughter was caring for him and his sons were not close to him, the testator was not delusional and had testamentary capacity from a clinical point of view. [120] He further testified that a dementia diagnosis is suspicious circumstances from a legal conceptual point of view. [121] As to Dr. Zoberman’s internally contradictory evidence regarding Constantin’s capacity, general practitioners such as Dr. Zoberman are not good at capacity assessments. [122] In cross-examination the witness testified that he had examined the relevant medical records of Constantin which were before the Court, and saw no documentation that indicated that the testator’s dementia was so severe that he could not have had testamentary capacity. [123] The criteria for assessment of testamentary capacity applied by the witness were: (1) what is the likelihood that the testator knew what the will was; (2) what is the likelihood that he knew generally what his assets were; (3) what is the likelihood that he knew there were persons who had a claim on those assets- his three children; (4) what is the likelihood that he knew about the rift with the boys; (5) what is the likelihood that he knew the rationale for the change of will; and (6) what is the likelihood that there was a delusion that his sons were ignoring him. [124] The witness further testified that Constantin was susceptible to undue influence because he was 84, and suffering from dementia and depression. [125] Connie made the arrangements for the will’s being signed. To find undue influence, the judge would have to conclude that the testator’s wishes were subverted by her wishes. [126] He stated that it is for the judge to be satisfied whether the criteria in law are met regarding testamentary capacity and undue influence. His opinions on those matters are clinical opinions. [127] I find that Dr. Shulman’s testimony was frank, professional, and logical. He exhibited valuable expertise in the area in which he was qualified to testify.
Application of the Law to the Facts
[128] The Plaintiffs have demonstrated the existence of suspicious circumstances in relation to the execution of the 2006 will. The dementia of the testator at the time he signed the will as explained in the testimony of Dr. Zoberman, satisfies me in that regard. [129] However, the Defendants have discharged their onus to prove testamentary capacity in accordance with the civil standard of proof. [130] By November 25, 2004 according to Dr. Zoberman Constantin’s memory had deteriorated as result of the dementia to the point where Connie had to dole out his medications. However, also according to Dr. Zoberman as of July 25, 2006 his dementia was largely confined to memory loss. He still understood the big things, including his needs regarding finances and medical health. [131] Dr. Zoberman’s evidence on that point squares with the testimony of Karl Schwind. Mr. Schwind testified that Constantin was not noticeably affected in his mental functioning until at most a year and half before his death on April 29, 2009. Even allowing for reasonable error in date, taking the demonstration of frailties further back in time, Mr. Schwind’s evidence is consistent with Constantin’s having the general ability to deal with big things of which Dr. Zoberman spoke. [132] Mr. Schwind also gave important insight into the rationale for Constantin’s leaving his estate entirely to Connie. It was in gratitude for her care and assistance to him in the last years of his life, while his sons were not acting in a similar manner. Derrick Norman’s evidence was also consistent with Mr. Schwind’s testimony on this matter. [133] Mr. Keith’s testimony was consistent with Dr. Zoberman’s assessment of Constantin’s capacity. As of the date of the execution of the will Mr. Keith saw no bizarre behaviour on Constantin’s part. [134] The evidence of Julian Birtzu, Valentin Birtzu, and Lynne Birtzu does not contradict these conclusions from the evidence, but is consistent with them. [135] Further, I find additional support in the evidence of Dr. Shulman who testified both that dementia is not inconsistent with testamentary capacity and that he saw nothing in the medical records of Constantin that indicated that he could not have had testamentary capacity when the will was executed. Justice Corbett’s reasoning in Johnson v. Huchkewich, supra supports that analysis of dementia not precluding testamentary capacity. [136] In coming to my conclusion on testamentary capacity I have had regard also to the six clinical factors listed by Dr. Shulman and the legal factors listed in the case law I have examined, particularly Banks v. Goodfellow, supra. Constantin knew that he was making a will giving his entire estate to his daughter. He did so to reward her for her care and assistance; he felt that he had done enough for his sons financially as stated by Mr. Schwind. [137] The Plaintiffs have not discharged their onus to prove undue influence. Constantin was susceptible to undue influence by reason of his age, dementia, and depression as noted by Dr. Shulman. Moreover, Connie made the arrangements to have the will drafted and was the sole beneficiary. However, the evidence falls far short of establishing the elements set out by the case law I have previously reviewed. There is no proof of coercion by Connie, nor is there proof that she subverted the testator’s wishes to borrow phraseology from Dr. Shulman. The testator’s gratitude to her and the absence of similar sentiments toward his sons explain why he made the will in question.
V. Conclusion and Remaining Issues
[138] I, therefore, uphold the validity of the 2006 will. The remaining issues need not be addressed because the estate passes to Connie entirely under the will. [139] For the reasons I have set out I dismiss the action at bar.
VI. Costs
[140] I will receive written submissions from the parties as to costs if they cannot agree on this issue. They are to be of no more than 5 pages, excluding a bill of costs. The Defendants are to serve and file their submissions within two weeks after release of these reasons. The Plaintiffs are to serve and file their submissions within two weeks of service of the Defendants’ submissions. There shall be no reply.
Bloom, J.
Released: March 2, 2017
