Court File and Parties

COURT FILE NO.: 34513/17 DATE: 2019/06/14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

IN THE ESTATE OF Annie Doris Wotton, deceased. CINDY KRISTINA KAY Applicant – and – JOHN EDWARD KAY SR., BY HIS LITIGATION GUARDIAN ROSEMARY MACKINNON Respondent

COUNSEL: Cheryl Letourneau, for Applicant Margot L. Pomerleau, for the Respondent

HEARD: May 17, 2019

REASONS FOR DECISION

MARANGER J.

Overview

[1] Annie Doris Wotton passed away on August 26, 2016, at the age of 95. On November 2, 2010, at the age of 89, she executed a will naming three beneficiaries: her son John Edward Kay and two of her three grandchildren, with each to share equally in the residue of her Estate.

[2] The Applicant, Cindy Kay, is one of the beneficiary grandchildren; she was also named as the alternate estate trustee. John Edward Kay was named the primary trustee, however, by reason of advanced dementia, he is incapable of acting in that capacity.

[3] Rosemary MacKinnon, the spouse and Litigation Guardian of John Edward Kay, filed a notice of objection to Cindy Kay’s application for a Certificate of Appointment of Estate Trustee. The objection is based on the proposition that the will should be declared invalid on the grounds that Mrs. Wotton lacked testamentary capacity at the time of its execution on November 2, 2010.

Background

[4] The following is a summary of the factual background to this application extracted from the material filed:

• Mrs. Wotton was born June 1, 1921. She and her husband John Henry Kay (“Jack”) had one child—John Edward Kay.
• John Edward Kay together with his first spouse Mado Marengere had three children: Rhonda, Cindy and John Jr.
• Ms. Marengere passed away in 2003.
• John Edward has been in a long term spousal relationship (28 years) with Rosemary MacKinnon. They ultimately married on May 28, 2010.
• Mrs. Wotton executed a last will and testament on April 16, 1992, when she was 71 years of age.
• The 1992 will directs: Mrs. Wotton’s husband, Jack, and her son John were appointed jointly as the executor; Mrs. Wotton’s interests in a specified piece of land were left to John; assets in Mrs. Wotton’s name alone were left to John; assets that were registered jointly with her husband were to pass to Jack but, if he predeceased her, such assets were to pass to John; and, if John predeceased her then his share was to be divided equally among her three grandchildren.
• John Edward Kay has advanced dementia and is incapable of performing basic tasks for himself. Rosemary MacKinnon is the attorney over his property and personal care.
• In November 2009, September 2010, and October 2010, medical assessments provisionally found that Mrs. Wotton had a mild to moderate Alzheimer’s type dementia, that she had difficulty with tasks involving language and memory skills, and her insight into her cognitive deficits was grossly impaired.
• On November 2, 2010, Mrs. Wotton met with a lawyer, Mr. Mark Ouimet-McPherson, in his office. The meeting lasted approximately 1.6 hours. In that time, Mr. Ouimet-McPherson assessed Mrs. Wotton’s capacity, took instructions, drafted the will and power of attorney and saw to their execution.
• The 2010 will directed: that John Edward Kay was appointed as estate trustee alone. Cindy Kay was named as an alternate estate trustee. The residue of the estate was to be divided equally among John Edward and two of her three grandchildren: Cindy and John Jr.
• Mr. Ouimet-McPherson formed the opinion that Mrs. Wotton had testamentary capacity at the time of the execution of the 2010 will.
• On April 6, 2019, a posthumous capacity assessment was prepared by Dr. Francine Sarazin, who gave the opinion that “there is reasonable evidence in support of a determination of incapacity when Mrs. Wotton gave instructions to draw up a last will and testament”.

Governing Legal Principles

Onus of proving capacity/ suspicious circumstances

[5] Testamentary capacity is a question of fact to be determined by examining all relevant circumstances. A testator is presumed to have capacity, unless a party raises a genuine issue, in which case, capacity must be proven on a balance of probabilities to establish the validity of a will: O’Neil v. Royal Trust Co. , , [1946] S.C.R. 622, at para. 32 .

[6] Where suspicious circumstances surrounding the preparation of the will exist, the presumption of capacity is no longer in effect, and the party seeking to prove the will must establish that the deceased had knowledge of and approved of the contents of the will, and had testamentary capacity. Vout v. Hay , [1995] 2 SCR 876 at 888.

[7] When considering whether there are suspicious circumstances, the court may consider: 1) the extent of physical and mental impairment of the testator around the time the will is signed; 2) whether the will in question constitutes a significant change from the former will; 3) whether the will in question generally seems to make testamentary sense; 4) the factual circumstances surrounding the execution of the will; and 5) whether a beneficiary was instrumental in the preparation of the will: Royal Trust Corporation of Canada v. Saunders, , [2006] O.J. No. 2291 (S.C.) , at para. 78 .

[8] When considered cumulatively, the evidence in this case serves to rebut the presumption of capacity and places the onus of proof of testamentary capacity on the party seeking to propound the will i.e., the Applicant, Cindy Kay. In arriving at this conclusion, I consider the following evidence:

• the medical evidence that the testatrix possibly suffered a form of mild to moderate Alzheimer dementia
• the testatrix’s age at the time of making the new will, i.e., 89 years old
• the testatrix’s somewhat compromised physical and mental health
• the changes between the 1992 and 2010 wills

[9] Therefore, it falls upon the Applicant in this case to prove, on a balance of probabilities, that Mrs. Wotton had testamentary capacity.

Testamentary capacity

[10] In the decision of Gironda v. Gironda , 2013 ONSC 4133 , 89 E.T.R. (3d) 224, Penny J. succinctly set out the law governing the determination of testamentary capacity at paras 50-52 and 57-58;

• The relevant time for determining testamentary capacity is at the time of giving instructions and executing the will or codicil.
• Testamentary capacity requires a person to be capable of understanding the essential elements of making a will such as property, objects, persons who would normally benefit and revocation of prior testamentary dispositions. The testator does not need to be fair, considerate or kind and, indeed, may even act capriciously provided that instructions are given freely from a sound mind, memory and understanding.
• Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (C.A.) , at 567-569 , is recognized as the leading authority on the criteria for testamentary capacity and requires the following: (1) Understanding the nature of the act of making a will and its consequences; (2) Understanding the extent of one’s assets; (3) Comprehending and appreciating the claims of those who might expect to benefit from the will, both those to be included and excluded; (4) Understanding the impact of the distribution of the assets of the estate; and (5) That the testator is free of any disorder of mind or delusions that might influence the disposition of his or her assets.
• It is also important to remember that isolated memory or other cognitive deficits on their own do not establish a lack of testamentary capacity.
• It is unnecessary for a competent testator to know the precise makeup of her entire estate to the last detail. Testators are not required to be accountants or to have an accountant’s knowledge and understanding of their estate. Nor it is necessary for the testator to understand the provisions of a will the way a lawyer would.

Analysis

[11] It seems to me that the two areas of evidence requiring careful scrutiny in arriving at a determination of whether Mrs. Wotton had testamentary capacity were: 1) the posthumous testamentary capacity assessment prepared by the neuropsychologist Dr. Sarazin, and 2) the contemporaneous notes, and evidence under oath (examination for discovery) of the solicitor/lawyer Mr. Ouimet-McPherson who met with Mrs. Wotton, took instructions from her, prepared the will and saw to its execution.

[12] I have also considered miscellaneous evidence and facts relevant to the issue of testamentary capacity.

The testamentary capacity assessment by Dr. Francine Sarazin

[13] Expert evidence is admissible in a proceeding if two criteria are met: 1) the four Mohan criteria for admissibility are satisfied namely: relevance, necessity, absence of any exclusionary rule and a properly qualified expert (see R. v. Mohan , , [1994] 2 S.C.R. 9); and, 2) the probative value of the evidence is not outweighed by its prejudicial effect (also referred to as a cost benefit analysis) ( White Burgess Langille Inman v . Abbott and Haliburton Co. , 2015 SCC 23 , [2015] 2 S.C.R. 182, at para. 19 ).

[14] The Applicant took the position that the report/assessment should not be admitted into evidence based on the notion that the author had demonstrated bias so as to disqualify her from providing an opinion. I disagree with that proposition.

[15] The bias allegation is founded on the Applicant’s view of how the expert analysed the evidence, and on the Applicant’s disagreement with the expert’s choice to omit from or comment upon certain evidence in her assessment. These are issues that the trier of fact could use in deciding what weight to attach to the assessment in arriving at the ultimate determination.

[16] To disqualify an expert on the basis of bias, more than the appearance of bias is required. What must be determined is whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case. White Burgess at para. 36.

[17] I find that all of the criteria for admissibility have been met. Dr. Sarazin is a qualified capacity assessor and has been so designated in Ontario since 1995. She has over 25 years of experience in assessing cognitive abilities of individuals in order to diagnose underlying dementia or to determine the extent of cognitive impairment associated with other neurological medical disorders. Furthermore, the evidence is relevant, necessary, and has probative value that is not outweighed by any prejudicial effect.

[18] Dr. Sarazin’s assessment is dated April 6, 2019. The ultimate finding of “reasonable evidence for a determination of incapacity” is based upon a review of documentary evidence including medical evidence and previous assessments as well as the notes, and transcripts of the examination of the solicitor, Mr. Ouimet-McPherson. It also provides a chronological historical account of what is referred to as the “onset and course of cognitive decline”.

[19] It is fair to say that there are aspects of the assessment that were based on conjecture and speculation: such as why and how Rhonda was left out of the will and what knowledge Mrs. Wotton would have had with respect to her son John’s capacity when she decided to name him as the primary trustee.

[20] Furthermore, some of the historical review omits information that could serve to weaken a finding of incapacity, such as: the previous diagnosis of dementia was provisional and of mild to moderate severity; Mrs. Wotton continued to reside on her own in an isolated home on Otty Lake until August 2010; and in 2011, Mrs. Wotton executed powers of attorney to Rosemary MacKinnon, at which time, her capacity was not questioned.

[21] The more important consideration is what weight I attach to the assessment in my ultimate determination. While I would not disregard it completely, in my estimation it should be afforded only a modest degree of weight. This is because of the following reasons: Mrs. Wotton was not really assessed; a retrospective capacity assessment (going back 9 years) is, in my view, inherently frail in terms of reliability. The assessment’s findings are based on only part of the evidence; the assessment was not an exhaustive review of Mrs. Wotton’s life in and around the time she signed the will. Finally, the Applicant’s material was not provided to or reviewed by the assessor.

The Lawyer/ Mr. Ouimet-McPherson

[22] The importance of Mr. Ouimet-McPherson’s evidence to this decision is perhaps best demonstrated by the fact that both counsel highlighted and relied upon it in support of a finding of either testamentary capacity or incapacity.

[23] After reviewing Mr. Ouimet-McPherson’s notes and testimony (transcripts of his examination for discovery) I arrive at the following conclusions and findings of fact:

• Cindy Kay contacted Mr. Ouimet-McPherson in the fall of 2010 because of Mrs. Wotton’s age. Mr. Ouimet-McPherson understood that Mrs. Wotton wanted to change her will and that Cindy was helping her find a lawyer.
• Mr.imet-McPherson first spoke to Mrs. Wotton over the phone on October 15, 2010. He had no concerns about her capacity following that call. It was a phone conversation with Cindy that alerted him to the issue of her capacity. Mr. Ouimet-McPherson met Mrs. Wotton briefly at her residence on October 26, 2010; John Edward Kay and Rosemary Mackinnon were there and Mrs. Wotton told Mr. Ouimet-McPherson that she wanted to meet with him alone.
• Mr. Ouimet-McPherson met with Mrs. Wotton on November 2, 2010. The appointment lasted about 95 minutes. He spoke to her for about one hour. Mr. Ouimet-McPherson’s notes reflect the instructions that Mrs. Wotton gave to him concerning both her will and powers of attorney. He also filled out a checklist and, based upon Mrs. Wotton’s answers to his questions, Mr. Ouimet-McPherson was satisfied that she had testamentary capacity; her knowledge of her family, her assets and, as he put it, “an overall picture of it that day” gave him that belief.
• Mr. Ouimet-McPherson acknowledged that Mrs. Wotton did not know the monetary value of her home/cottage, the balance in her bank accounts, what amounts were in her RRIF or if she had a current life insurance policy.
• Mrs. Wotton advised Mr. Ouimet-McPherson of the pre-existing 1992 will and that the new will would result in changes.
• In cross-examination the following points were brought out : a) Cindy Kay pointed out to Mr. Ouimet-McPherson that her grandmother was probably incapacitated, that she had good and bad days, and was lucid only on an interim basis“. The lawyer acknowledged taking no independent steps apart from meeting Mrs. Wotton and questioning her to personally assess capacity. b) Mrs. Wotton did not mention Rhonda, her third grandchild, to Mr. Ouimet-McPherson. Rhonda was specifically excluded from the will. c) Mrs. Wotton did not advise Mr. Ouimet-McPherson as to the level of John Edward Kay’s health issues. d) Mr. Ouimet-McPherson was unaware of capacity assessments undergone by Mrs. Wotton in the past, including that of October 10, 2010. e) Mr. Ouimet-McPherson spent an hour or so speaking with and questioning Mrs. Wotton on November 2, 2010. f) Mrs. Wotton’s knowledge of her assets was cryptic: she knew she had a house/cottage but had no idea of its value, only that she owned it for a long time; Mrs. Wotton was uncertain about whether her life insurance had lapsed; she knew that she had bank accounts in her name alone but did not know the balances; and Mrs. Wotton was aware that she had an RRIF but did not know its balance. Mr. Ouimet-McPherson believed or guessed that Mrs. Wotton’s estate was worth $500,000 to $600,000. However, this belief was grounded in his experience rather than specific information provided by Mrs. Wotton. g) Mr. Ouimet-McPherson did not specifically discuss Mrs. Wotton’s medical conditions with her.
• Mr. Ouimet-McPherson also spoke and met with Mrs. Wotton on July 19, 2011, where she indicated to him that she didn’t want to manage her own affairs. Mr. Ouimet-McPherson found that, at that point, Mrs. Wotton’s memory seemed to be beginning to lapse.

Other evidence/ facts relevant to capacity

[24] The medical evidence shows that in November 2009, at the age of 88, Mrs. Wotton was provisionally diagnosed with:

• dementia, most likely of the Alzheimer’s type of mild to moderate severity
• hypertension
• moderate impairment of memory, and
• progressive cognitive and functional decline

[25] Mrs. Wotton’s third grandchild, Rhonda, alleged that Mrs. Wotton’s deceased husband sexually molested her in her youth. As of 2009-2010, Rhonda was estranged from her grandmother. Whether the precise nature of the allegations were known to Mrs. Wotton is unclear on the evidence, however that she was estranged for some reason is clear.

[26] Mrs. Wotton resided on her own in a cottage type property and managed her own affairs until August 2010, when she resided with John and Rosemary for a short time period.

[27] In September 2010, Mrs. Wotton moved into a residence for short term/respite care.

[28] In October 2010, Mrs. Wotton was assessed by Geriatric Psychiatry Community services of Ottawa. Excerpts from that assessment described Mrs. Wotton’s condition at the time in the following terms:

• “her memory started to deteriorate a year ago”
• “she was managing her daily living on her own i.e. bathing, dressing, grooming, toileting, eating and mobility”
• “she was managing her own finances”
• Mrs. Wotton had few bills and was paying them
• “During home visits with [the] writer Mrs. Wotton had difficulty answering questions and showed deficits in her short-term and long-term memory”
• Under the heading ‘mental health status’, the assessment indicates that, “[Mrs. Wotton] was able to respond appropriately to most questions, but she was quite tangential and had to be redirected throughout the interview. She was able to sit still and was focused throughout the visit”
• Under a list identifying problems, the assessment indicates that, “Mrs. Wotton does not have a power of attorney and is no longer able to manage her finances.
• “Mrs. Wotton is a pleasant, energetic but dementing woman. She has adjusted fairly well to living in a retirement home but does express feeling bored and wishes she could return to her home in Perth.”

Conclusion on capacity

[29] After taking into consideration the evidence presented, the able arguments of both counsel and the applicable legal principles, including the test set out in Banks , I arrive at the conclusion that Mrs. Wotton, on November 2, 2010, more likely than not had testamentary capacity. I arrive at that conclusion in part based upon the following reasons:

a) Understanding the nature of the act of making a will and its consequences: The November 2, 2010, will is logical. Mrs. Wotton appears to have understood what she was doing. Her life story leading up to the creation and contents of the will makes rational sense. Wanting to alter the will so as to provide for two of her grandchildren and her son equally could have been motivated by any number of reasons, including her son’s recent remarriage.

Mrs. Wotton’s decision to exclude Rhonda Kay from the will all also makes sense in all the circumstances. While the specific reason for the exclusion is not patent, there is no doubt that the two had a falling out. It is fair to infer that Mrs. Wotton likely had a general idea that Rhonda had made allegations against Mrs. Wotton’s deceased husband, particularly given the content of Rhonda’s affidavit.

Mrs. Wotton’s comments to her solicitor about wanting to be fair and avoid disputes, all demonstrate that she more likely than not understood the nature of the act of making a will and its consequences.

b) Understanding the extent of one’s assets: the required knowledge does not necessitate a precise accounting of a dollar value of what the testator owns. In the case at bar, Mrs. Wotton knew in general terms what she owned. She identified that she owned a cottage/house, which was her principal asset. Mrs. Wotton also thought she might have life insurance, though was uncertain as to whether it had lapsed (likely, the insurance had lapsed since Mrs. Wotton was 89 years old). Mrs. Wotton also knew that she had bank accounts and RRIFs but did not remember what the last statement showed. This has to be considered in light of the fact that she was 89 years old, and the lawyer interviewing her felt that she was responding appropriately to the questions asked.

c) Understanding the claims of those who might expect to benefit from the will, both of those to be included and excluded: Mrs. Wotton described to the drafting lawyer that she wanted to make a new will that was “more fair” and explained that she didn’t want any fighting. Mrs. Wotton left Rhonda out of her will without telling the lawyer, however, the evidence supports that Rhonda and Mrs. Wotton were estranged. As such, Mrs. Wotton’s decision to exclude Rhonda without telling her lawyer was entirely logical in the circumstances.

d) Understanding the distribution of the estate: Mrs. Wotton’s instructions support the proposition that she knew she was changing the 1992 will to a will which divided her assets three ways, rather than a will which passed all assets solely to her son.

e) Any disorder of the mind or delusions: while Mrs. Wotton, had some cognitive deficits (i.e., some mild to moderate dementia), the one hour spent with the lawyer and his evidence about that time discloses to me in no uncertain terms that Mrs. Wotton knew what she was doing. Mrs. Wotton was not suffering from any delusions or disorders of the mind that impacted on what she was intentionally doing on that date.

f) Finally, I found that Mr. Ouimet-McPherson’s evidence that in his estimation based on his meetings with Mrs. Wotton, the manner she answered his questions, the knowledge she had of her family, of her assets and as he stated “an overall picture of that day”; while imperfect, is more persuasive than Dr. Sarazin’s retrospective capacity assessment.

[30] Therefore, for all of the above reasons, the November 2, 2010, will is declared valid, Cindy Kay is named as the Estate Trustee with Will attached in the Estate of Annie Doris Wotton.

Costs

[31] If the parties are unable to resolve the issue of costs, I will accept two pages of written argument by each of the parties. The Applicant must submit its written arguments to me within 15 days of the release of this decision and the respondent must submits its written arguments seven days thereafter. The applicant will be allowed one page of reply within five days thereafter. Failing which, there will be no orders as to costs.

Mr. Justice Robert L. Maranger

Released: June 14, 2019