Gilbert v. Girouard, 2023 ONSC 4445

COURT FILE NO.: CV-22-0470-00 DATE: 2023-07-31

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Christopher Lee Gilbert and Jennifer Ruth Tucker Applicants

Ms. A. Colquhoun for the Applicants

- and -

Karen Girouard, personally, in her capacity as the Estate Trustee for the Estate of Philip John Franklin and in her capacity as the Attorney for Property for Philip John Franklin Gilbert Respondent

Mr. R. Venn for the Respondent, personally and as Estate Trustee for the Estate of Phillip John Franklin Gilbert

HEARD: June 24, 2023, at Thunder Bay, 2023 via Zoom

Madam Justice H. M Pierce

Reasons on Motion

Introduction

1The applicants challenge their father’s wills executed on September 28, 2021 (“the impugned wills”) on two grounds: that he lacked testamentary capacity to make the wills and that they are the product of the respondent’s undue influence over him.

2The court considered two motions:

1. The applicants, who are brother and sister, seek disclosure of certain medical records documenting the medical condition of their father, Phillip John Franklin Gilbert, (“the deceased”) from January 1, 2020 to April 1, 2022;
2. The respondent Estate Trustee, Karen Girouard, who is the applicants’ sister, seeks dismissal of their application.

3The respondent withdrew her motion for security for costs.

The Background

4The parties are the adult children of Phillip John Franklin Gilbert (“the deceased”) who died on April 1, 2022, aged 80.

5The applicants, Jennifer Tucker, lives in Longlac, Ontario and Chris Gilbert lives in Florida, his residence since 2000. The respondent, Karen Girouard, resides in Beardmore and Thunder Bay, Ontario.

6It is not contested that Jennifer had regular contact with the deceased. Chris states that he had regular contact with the deceased by telephone, email and Facebook. There is no evidence when or how often Chris visited his father in person.

7The deceased was a resident of Beardmore, Ontario. Over his lifetime, the deceased made several wills. The first known will was made in 1979, leaving his estate to his wife and, if she predeceased him, the residue equally to his children.

8In 1985, the deceased made a second will, naming his brother as Estate Trustee and Chris as alternate trustee, and giving the residue equally to his children. The deceased and Shirley Gilbert divorced in 1989.

9The last known wills were prepared by and executed in the office of Mr. B. Inglis of Buset and Partners on September 28, 2021. The Buset firm, where Mr. Inglis works, was the deceased’s usual law firm for legal matters.

10One will dealt with his corporate assets, the other with his personal assets. Karen was granted an appointment as Estate Trustee on August 8, 2022. She is the sole beneficiary of both wills per stirpes. The alternate Estate Trustees named are Karen’s husband and the deceased’s grandson. The deceased made no provision in the wills for Chris, Jennifer or their children.

11However, in addition to the wills, the deceased made certain beneficiary designations. For example, in January, 2007, he designated Karen and Jennifer as equal beneficiaries of his RRIF. In February, 2011, he designated Karen as the sole beneficiary of his Tax-Free Savings account. In November 2012, he designated the sisters as beneficiaries of a small life insurance policy. These assets have been distributed.

12The deceased incorporated a business through which he operated a hardware store in Beardmore. He drove himself to work daily and was active in his business at the time the last wills were executed. Karen has now sold the property owned by the deceased’s corporation and his principal residence to arms-length purchasers.

13The deceased was diagnosed with cancer in November of 2019, a fact that he disclosed to Karen, but not to Jennifer or Chris. Karen later told her siblings about his diagnosis.

14In January or early February 2020, Karen moved into the deceased’s home to assist him with his daily life and help him keep his medical appointments organized. When he had medical appointments in Thunder Bay, Karen or her husband accompanied him.

Disclosure of Medical Records

15The applicants move for disclosure of the deceased’s medical records from January 1, 2020 to April 1, 2022, which is his date of death. At the argument of the motion, I gave leave to abridge the time for service of the motion on the third-party witnesses, none of whom appeared at the motion.

16The applicants’ request the following medical records, clinical notes and files for the deceased for the period requested from:

a. Thunder Bay Regional Health Sciences Centre; b. Dr. O. Aseyev; c. Dr. K. Bezanson; d. Nipigon District Memorial Hospital; e. Beardmore Regional Health Centre; f. Dr. M. Azais, Dr. Bruce Pynn, and or Pterosaur Health Care Inc; g. Northwest LHIN Homecare; and h. Victoria Order of Nurses.

17It is the applicants’ position that these records are relevant to whether the deceased had testamentary capacity when the wills were signed and provide context to Karen’s relationship with the deceased in determining whether she had undue influence over him in the making of his wills.

18The applicants’ motion for production of the deceased’s medical records is dismissed for the following reasons.

19The impugned wills, for which testamentary capacity is challenged, were executed on September 28, 2021. It is settled law that the relevant time to determine testamentary capacity is at the time of giving instructions and executing the will: Estate of Ruth Smith, Smith v. Rotstein, 2010 ONSC 2017, para. 118. Subsequent incapacity does not invalidate the will. Therefore, medical records following the date of the will’s execution are irrelevant.

20Furthermore, the deceased declined to tell two of his children about his cancer diagnosis. This was not an accidental decision. It suggests that he was a man who valued his privacy, even, or perhaps especially, where his children were concerned.

21The court should be slow to release to the deceased’s children the kind of medical information that he chose not to share with them during his lifetime. Not only would it be a gross intrusion on his privacy, the disclosure might have negative consequences for the memories the children carry of their father.

22In Seepa v. Seepa, 2017 ONSC 5368, at para. 28, Justice F.L. Myers observed,

There is something innately offensive about the idea that an excluded relative can simply romp through a testator’s most private legal and health information fishing for evidence on making the most meagre of allegations of impropriety on no real evidence.

23I agree with Justice Myers. In this case, the solicitor’s file is comprehensive enough to answer allegations of incapacity. In this case, it serves as the best evidence as to testamentary capacity. Production of the deceased’s medical records is a fishing expedition, that affects the privacy and the dignity of the deceased.

24The solicitor’s file documents each meeting he had with the deceased, whether in person, by email, or by telephone. It describes the circumstances surrounding these communications, who was present, the deceased’s knowledge of his assets, the rationale for preparation of a will to deal with corporate assets as well as a will for his personal assets, the instructions given, recognition of his three children and his reasons for excluding two of them. The file also documents the solicitor’s consideration of his client’s testamentary capacity during these communications, including at the time the will was executed and a consideration of undue influence.

Test for Challenging the Validity of a Will

25The impugned wills were duly signed in the presence of two attesting witnesses present at the same time in the presence of the testator, fulfilling the formal requirements for validity under s. 4 of the Succession Law Reform Act, R.S.O. 1990, c. S.26.

26It is not disputed that the applicants have a financial interest in the deceased’s estate, as is required to apply for directions under Rule 75.06(1) of the Rules of Civil Procedure. Under Rules 75.01 and 75.06, the court has discretion to determine whether the will may be proved and the manner in which it shall be proved: Neuberger Estate v. York, 2016 ONCA 191, at paras. 83-87.

27The onus is on the party challenging the validity of the will to adduce or point to some evidence which, if accepted, calls into question the validity of the will. The civil standard of proof applies. The threshold for evidence is low, but it must amount to more than a suspicion: Joma v. Jaunkalns, 2019 ONSC 6788 at para. 24.

28If the applicants cannot meet this threshold, or alternatively, if the propounder of the will successfully answers the evidence, then the court may dismiss the application. If the propounder of the will fails to answer the applicant’s evidence, then the court may order the will to be proved pursuant to Rule 75.06 (3). See: Neuberger Estate, para. 89.

29This is a low evidentiary threshold: Morrish et al. v. Katona et al., 2021 ONSC 3805 at para. 49. Nevertheless, the court may grant summary judgment dismissing a will challenge in contentious estate matters: Travica v. Mailloux, 2009 ONCA 365 at para. 7.

Testamentary Capacity

30In Hall v. Bennett Estate, , 64 O.R. (3d) 191 (2003), para. 14, the Ontario Court of Appeal described testamentary capacity in the following terms:

Numerous cases have dealt with the question of testamentary capacity. It has often been repeated that a testator must have "a sound disposing mind" to make a valid will. The following requirements can be extricated from the case law. In order to have a sound disposing mind, a testator:

• must understand the nature and effect of a will;
• must recollect the nature and extent of his or her property;
• must understand the extent of what he or she is giving under the will;
• must remember the persons that he or she might be expected to benefit under his or her will; and
• where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.

31In this case, Jennifer’s affidavit adds no new or independent information; she merely adopts the contents of Chris’s affidavit. Chris’s affidavit takes issue with the deceased’s capacity as follows:

1. The impugned wills are inconsistent with his father’s testamentary wishes consistently expressed to Chris, in that he did not receive money or assets from his father’s estate;
2. Chris claims that his father’s business and personal taxes were not kept up to date prior to his death, which was out of character;
3. Chris claims that his father’s explanation that he been disconnected from Chris and Jennifer for many years was inaccurate.

32Chris does not say when he discussed his testamentary intentions with his father. He simply points to earlier wills that include him as a beneficiary.

33It is evident that the deceased’s testamentary wishes evolved over time as his family circumstances changed. For example, when he separated from his wife and ultimately divorced, he made a new will excluding her.

34The deceased’s intention to exclude Chris is not only evident from his instructions to his solicitor but began much earlier when he designated Karen and Jennifer as beneficiaries on two assets but excluded Chris. The earliest of these designations, on his RRIF, was made in 2007; the second, on his life insurance, was made in 2012.

35Chris’s contention that the deceased failed to keep up his taxes prior to his death is a bald statement, lacking in proof. Even if true, it is not evidence of incapacity. It would not be surprising, however, given that his business was no longer operating, his corporation was on the verge of winding up and he was terminally ill.

36I conclude that the applicants have not adduced any evidence challenging the deceased’s capacity to make the impugned wills.

37In my view, Mr. Inglis’ meticulous file is a complete answer to the applicants’ contention that the deceased lacked capacity to make the impugned wills. Not only did the solicitor make hand-written notes of his contacts with the deceased, whether by telephone or in person, but a contemporaneous memo was also prepared. Email exchanges with his client are also included.

38On August 12, 2021, Mr. Inglis documented his initial telephone instructions from the deceased to prepare wills and powers of attorney in a detailed memorandum. He noted that “Karen was present in the room but not active on the call.” He also noted that his client’s business was not operational and close to winding up and that he was battling terminal cancer and experienced fatigue from treatment.

39During this initial call, the solicitor had access to the deceased’s previous will dated December 5, 1985 and questioned him about his children. The memorandum summarized their conversation as follows:

As the previous Will cited “all my children” I asked Phil if he had other living children (Christopher as per the old Will – confirming any others). He indicated that in addition to Karen, he had two others – Jennifer Tucker and Christopher Gilbert. Phil explained that he had been disconnected from the two of them for many years, more specifically Christopher as he hasn’t had contact with him in many years. As Karen had been present in his life in all faucets [sic], he wanted his estate to go to her entirely. I asked Phil if he wanted to explicitly list the exclusion of Jennifer and Christopher in his Will. Phil advised that he did not want to include a provision on same. I explained that it is often helpful for administration when excluding children to explicitly list. Again, Phil wanted to omit any explicit language on this.

40Chris deposes that he communicated with his father electronically and by phone. He makes no mention of in-person visits. While Chris may have believed that he remained connected to his father, this was not his father’s perception of their relationship. He recognized his closer connection with Jennifer by designating her as a beneficiary on two assets.

41Mr. Inglis’ memorandum documents that Karen and Jennifer were jointly designated as beneficiaries on his RRIF valued in the range of $100,000 as well as a smaller life insurance policy, but that he had made no similar designation for Chris.

42As to testamentary capacity, the memorandum states:

Phil was well articulated and understood the nature of his assets to a high degree. No issue on capacity or understanding of what he owns or his intentions with same as far as I could tell from our phone conversation.

43Draft wills and powers of attorney were sent to Phil by email on September 9, 2021 with requests for further information. A reply was sent from Phil via email on September 24, 2021.

44Chris alleges that Karen had access to the deceased’s correspondence, but there is no evidence to support that she was involved in these email communications. The deceased’s answers were responsive to the questions his solicitor asked and referenced during a subsequent telephone call with his solicitor.

45Mr. Inglis reviewed the draft wills and powers of attorney with the deceased “in their entirety” by telephone on September 27, 2021 and confirmed that they were ready to be signed the following day as his memorandum of the call indicates.

46After the wills and powers of attorney were executed on September 28, 2021, Mr. Inglis prepared a further file memorandum with his observations about capacity:

To note on capacity, Phil has been consistent since the first phone call we had. He understood the decisions he was making with respect to what his assets are and who they would be going to.

47His memorandum also noted the presence of Karen in the room during signing. He commented:

Karen remained in the room for the signing. Phil indicated that he wanted her there as she provided him a sense of comfort. She remained silent throughout the appointment.

48The solicitor sent a reporting letter on December 2, 2021, concerning the right to make changes to the wills and powers of attorney, the fact that his firm was storing the original documents, and other advice.

49This case is not on point with Morrish et al. v. Katona, 2021 ONSC 3805 where there was evidence of testator’s cognitive issues, changes in personality, multiple hospitalizations and alcohol consumption impacting her medications.

50In light of Mr. Inglis’ evidence, I conclude that the deceased had capacity to instruct his solicitor about the content of the wills at the time the instructions were given and at the time the wills were executed. The applicants have not met the threshold that the deceased lacked testamentary capacity. Their application on these grounds is dismissed.

Undue Influence

51The applicants submit that the impugned wills are a product of the respondent’s undue influence over the deceased. They argue that there is some evidence, which if accepted, calls into question the validity of the wills. Specifically, they cite the following evidence:

a) The deceased gave his solicitor inaccurate information about being disconnected from the applicants; b) The respondent was involved in and present for the instruction and execution of the wills, a fact that was not initially disclosed by the respondent; c) The deceased was reliant on the respondent for personal care and had access to his personal correspondence at the time the wills were signed; d) The wills were signed when the deceased was undergoing medical treatment and on the eve of a medical procedure; e) The handwriting on the draft will was not believed to be the deceased’s.

52In Gironda v. Gironda, 2013 ONSC 4133 at para. 77, the court reflects on circumstances that may indicate undue influence is present:

… The history of the parties’ relationship is vital to an examination of capacity where undue influence is, or could be, present. Indications of the potential for undue influence include where the testator is dependent on the beneficiary for emotional and physical needs, where the testator is socially isolated, where the testator has experienced recent family conflict, where the testator has experienced recent bereavement, where the testator has made a new will not consistent with prior wills, and where the testator has made testamentary changes simultaneously with changes to other legal documents such as powers of attorney.

53The solicitor was alive to issues of undue influence, recording as he did the presence of Karen in the room during instructions or execution of the wills and her lack of participation in discussions. At times when he did not record her presence, it can be assumed that she was not present. It is clear that Mr. Inglis would have excluded Karen from the review and signing of the wills but for the deceased’s request that she stay.

54The applicants say that the deceased gave inaccurate information to his solicitor by telling him that he had been disconnected from Jennifer and Chris, especially, for many years. I do not accept this submission.

55This statement was an emotional expression of his relationship with his children from a man at the end of his life. It represents a frank weighing of his emotional attachments, the product of taking stock. The other statement that the solicitor records that has emotional content is that the presence of his daughter, Karen, gave him comfort. It is a recognition of her emotional importance to him.

56The fact that the wills were signed when the deceased was undergoing medical treatment does not meet the test. Wills are often signed when testators are ill, in preparation for death.

57While there is no evidence that the deceased was emotionally isolated at the time the wills were made, as in Gironda, there is evidence that the deceased was reliant on Karen for his emotional and physical needs. She had been living with him for about 1 ½ years, providing him with assistance and care, following his cancer diagnosis, including transporting him to and sitting in on medical appointments, and assisting him with his mobility.

58There is a history of Karen and her husband doing yard work, snow ploughing, home maintenance, building a deck, running errands, and assisting in the deceased’s business. The deceased’s new wills, which excluded Chris and Jennifer, may well be a reflection of his gratitude to Karen and her family.

59The deceased is entitled to exclude his children from his estate. However, as in Gironda, he made this testamentary change when the powers of attorney were also made.

60It is very sad that the death of the father has led to the schism between the siblings in a contest over the will. Mr. Inglis was aware of the risk when he recommended that the deceased explain his decision to exclude Chris and Jennifer in his will. Unfortunately, the deceased did not take his advice.

61As in Gironda, the applicants have established that the deceased was reliant on Karen for his emotional and physical needs, that he made changes in his estate plan, and that he signed powers of attorney at the time he made the new will.

62I find that the applicants have established a minimal evidentiary threshold to call into question the validity of the September 2021 wills if undue influence is established.

63An order will issue pursuant to Rule 75.06 to determine whether the wills executed on September 28, 2021 were the product of the respondent’s undue influence over the deceased.

64The application for a determination of the deceased’s testamentary capacity is dismissed. The applicants shall be the plaintiffs. They shall serve and file a statement of claim. The respondent shall be the defendant. She shall serve and file a statement of defence in accordance with the rules. Once the pleadings have been finalized, the parties are ordered to schedule an early resolution conference.

65Costs of these motions are reserved to the disposing judge.