Court File and Parties

COURT FILE NO.: CV-22-13901-00ES DATE: 20231031 ONTARIO SUPERIOR COURT OF JUSTICE

RE: LARRY DINALLY, Applicant -and- YASMIN DINALLY aka SHARON DINALLY and the Estate of KAYMAL DINALLY, deceased, Respondents

BEFORE: FL Myers J

COUNSEL: Lisbeth A Hollaman, for the applicant Gregory E McConnell, for the respondents

HEARD: October 24, 2023

Endorsement

The Motion for Directions - Introduction

[1] The applicant challenges his father’s will based on allegations that his father lacked testimonial capacity. He also claims that his sister unduly influenced their father to make a will and transfer a property so as to exclude the applicant from equal inheritance.

[2] This is the classic case. The applicant is the excluded adult child. The respondent has the role of the child who lived with and cared for her father. She benefited from the late will changes and property transfers that the father made.

[3] The applicant asks for an order for directions to send the case to trial and to enable him to obtain from third parties any financial, medical, and legal files concerning the father.

[4] As in all of these cases, the issue at this early stage is whether the applicant has adduced sufficient evidence to overcome the “minimal evidentiary threshold” erected by the Court of Appeal in Neuberger v. York, 2016 ONCA 191.

[5] At para. 89 of Neuberger, the Court of Appeal held:

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

[6] In this case, the applicant has readily succeeded in putting into issue the validity of his father’s will based on undue influence if not incapacity. Accordingly, I make the order sought.

[7] As discussed below, this case demonstrates, again, that this issue should not be a very difficult one. Most cases rightly resolve the issue on consent and should continue to do so. There is always some tweaking of the scope of production required in each case to respect the deceased’s privacy as much as possible and to protect the litigants and all beneficiaries from undue cost and delay. These issues are readily soluble by negotiation among counsel.

[8] What this case also demonstrates, again, is that with some objective, corroborated evidence of relevant events around the time of the challenged wills, surmounting the minimal evidentiary threshold is not a very difficult task.

[9] In my view, lengthy affidavits chock-full of historic lamentations, nasty allegations, innuendo, subjective assumptions of wrongdoing, and speculation are just indications in themselves that the applicant does not have much of a case.

[10] These motions should not become an advanced battleground in the war to come. If the applicant has no objective or corroborated evidence and cannot get it through cross-examination of the party opposite, throwing in the kitchen sink and spending tens of thousands of dollars will not likely help. If a motion is necessary, it should be surgical: pointing to a few key pieces of relevant evidence so as to move on to the next stage.

The Facts

[11] Kaymal Dinally died on August 6, 2022. His spouse predeceased him three years earlier.

[12] The respondent daughter, Yasmin Dinally, is the alternate estate trustee and sole beneficiary under Mr. Dinally’s will. The first named estate trustee, lawyer Peter O’Donoghue, renounced the appointment. More is written about Mr. O’Donoghue below.

[13] The will names the applicant son, Larry Dinally, as the alternate beneficiary if his sister predeceased him. As Yasmin Dinally is still alive, Larry Dinally will not receive anything under his father’s will.

[14] Yasmin Dinally resided with her parents since 1999. She says that in the years before their father died, Larry Dinally only visited his father in person in February and then in July, 2020 during the height of the pandemic.

[15] Larry Dinally visited his father in February, 2020 because his father had invited his long-time lawyer Peter O’Donoghue over that day to discuss giving his house to Yasmin Dinally. She says that her father and mother both wished this to be done.

[16] Both parties record that when Mr. Dinally told Mr. O’Donoghue that he and his late wife wished to transfer their house to Yasmin Dinally alone, Mr. O’Donoghue replied that he did not believe Mr. Dinally. He said that the late mother was the fairest person that he knew. When the father pushed for Mr. O’Donoghue to transfer the house, he said, “I’m out” and refused to take instructions.

[17] Yasmin Dinally then swears that her brother threatened that she was going to be sorry for trying to take the house.

[18] Just over one year later, in March, 2021, Yasmin Dinally helped her father retain a lawyer named Sheldon Sherman. The respondent has filed a form of statutory declaration sworn by Mr. Sherman. All of his material is oddly written in all capital letters and is replete with spelling and grammar errors.

[19] Mr. Sherman reports that during their meeting in early March, 2021, with Yasmin Dinally present, Mr. Dinally instructed Mr. Sherman to transfer Mr. Dinally’s house to himself and Yasmin jointly. Mr. Sherman swears that he (and not Mr. Dinally) expressed that it was Mr. Dinally’s intention that his daughter should receive the house when Mr. Dinally died.

[20] Then, three weeks later, Mr. Sherman reports that Mr. Dinally retained him again to sever the joint tenancy that he had just created. Mr. Dinally said that he wished the applicant to inherit a one-quarter interest in the house (i.e. that Mr. Dinally’s 50% share would be divided equally between this son and daughter under Mr. Dinally’s will).

[21] Almost a year later, in March, 2022, Mr. Dinally retained Mr. Sherman again to revise his will. He said he wanted to make his daughter his sole heir with his grandson as the alternate. Mr. Sherman swears that Mr. Dinally told hm that he was extremely disappointed with his son and did not want the respondent daughter to have any problems with him later. Mr. Dinally also said that his son was already well off and did not need to inherit from him.

[22] Mr. Sherman swears, somewhat remarkably, that,

WE BOTH FORGOT TO TRANSFER THE PROPERTY BACK TO HIMSELF AND HIS DAUGHTER AS JOINT TENANTS AND AVOID HAVING TO GET PROBATE.

[23] Despite Mr. Dinally’s forgetfulness (and Mr. Sherman’s too), Mr. Sherman concludes his declaration as follows:

IN MY OPINION KAYMAL DINALLY WAS IN FULL CONTROL OF HIS MENTAL FACULTIES. HE KNEW EXACTLY WHAT HE WAS DOING. HIS DAUGHTER ACCOMPANIED HIM ON ALL THESE OCCASSIONS [sic] BUT DID NOT PARTICITPATE [sic] IN ANY OF MY DISCUSSIONS WITH HIM. IT WAS NOTED THAT HE WAS NOT BEING UNDULY INFLUENCED BY HIS DAUGHTER AND HIS INSTRUCTIONS TO ME ON EACH OCCASSION [sic] WERE HIS ALONE. AND HE WAS NOT BEING PRESSURED BY HIS DAUGHTER OR ANY ONE ELSE.

IT WAS CLEAR TO ME THAT KAYMAL DINALLY WAS OF SOUND MIND AND WAS NOT BEING INFLUENCED BY ANYONE AND HE HAD, IN HIS OPINION, REASONS TO MAKE THESE DECISIONS. [Emphasis added.]

[24] Mr. Sherman’s use of the passive phrase “[i]t was noted” is noteworthy. First, by whom and on what basis? The passive phrasing deprives the statement that follows of substance. Second, where was it noted? Mr. Sherman has advised counsel for the applicant that he took no notes and has no file.

[25] Mr. Dinally made two video recordings before he passed away. They are said to have been made a year apart. But he is in the same place, wearing the same clothes, and looks the same in both. In both videos, Mr. Dinally seems to have understood that he was leaving his house solely to his daughter.

[26] In the first video Mr. Dinally said:

I, Kaymal, would like to have this house be given to Yasmin. I know that Larry already has a house. But Yasmin has been helping me, in every way for a few years and I feel that is only fair, and just, that Yasmin, that she be given this house. Amen

[27] That video was said to have been recorded just prior to the date that Mr. Dinally put the house into joint tenancy and then three weeks later severed the joint tenancy specifically to benefit his son.

[28] In the second video, said to have been recorded in February, 2022, just before changing his will, Mr. Dinally says:

Hi. I want everyone to know ... because of the way, how Larry has behaved ... I am leaving nothing .. I have told Yasmin and I'm telling everyone .. that I leave nothing for Larry because of how he's behaved .. and has behaved ... and nothing is, is left for him, including this house ... Amen

[29] There is no indication in any evidence of any “behaviour” by Larry Dinally to so upset his father.

[30] While trying to defend against third party production, Yasmin Dinally has also produced some medical records concerning her father (in addition to the lawyer’s affidavit above).

[31] The medical records show that Mr. Dinally was suffering from some dementia. The one comment on capacity suggests that his doctor believed that he had capacity in March, 2021 around the time that Mr. Dinally transferred the house into and then out of joint tenancy.

[32] The medical records also record Mr. Dinally repeatedly complaining to his doctors that his daughter Yasmin was controlling his life. He called her a “control freak”. He says she called him names. She took away his cell phone. She took away his TV privileges. She stopped taking him out for walks so that he was apparently housebound for four or five months in mid-2021. She threatened to put him in a home.

[33] Most significantly, Mr. Dinally apparently told his doctors that he saw no use in fighting with his daughter because he would lose. Around the time that he changed his will to disinherit the applicant, Mr. Dinally told his doctor that his daughter controls his life.

[34] Finally, the respondent has filed a letter from a long-time friend of the deceased that supports his capacity right up to the date of his death.

Analysis

[35] In Johnson v. Johnson, 2022 ONCA 682, the Court of Appeal explained the requirement that an applicant in a will challenge like this one meet an initial minimal evidentiary threshold:

In other words, a claimant should not be able to put an estate to the needless expense of steps, such as documentary discovery, unless he or she meets the minimal evidential threshold prescribed in Neuberger.

[36] The Court of Appeal in Johnson also adopted the idea that in assessing motions for directions, the court ought to weigh the parties’ positions to determine what processes, if any, are required to resolve any conflicts that the court cannot fairly resolve on the record before it. That determination is made, as always, to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7.

[37] I accept Mr. McConnell’s submission that there is little evidence to show that Mr. Dinally lacked capacity when he signed his will. But his mental state was certainly less than crisp. He could not tell his doctor how much money he had, for example. I do not have a capacity assessment at this stage of course. But understanding the scope of one’s assets is a key piece of capacity puzzle.

[38] As noted at the outset, the applicant needs to point to some evidence that, if accepted, may call into question the validity of the deceased’s will. This type of motion almost always turns on the concept of relevance.

[39] To be admissible, evidence must be relevant. In R. v. M.T., 2012 ONCA 511 the Court of Appeal accepted that:

An item of evidence is relevant if it makes the fact it seeks to establish slightly more or less probable than that fact would be without that evidence, through the application of everyday experience and common sense: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d), 16, at paras. 204-205.

[40] The question before me is whether there is some relevant evidence on the issues of incapacity and undue influence. Is there evidence that makes the constituent elements of findings of incapacity or undue influence more or less likely? If so, has that evidence been answered?

[41] Often, in these motions, evidence is tendered that on its own does not make any inference more or less likely unless one starts with a predisposition that the respondent is a wrongdoer.

[42] For example, in Giann v Giannopoulos, 2023 ONSC 5412, the applicant alleged undue influence and claimed, among other things, that the deceased stopped attending bible classes after the alleged influencer became involved in his life. The fact that someone stops bible classes is itself a wholly ambiguous act. He or she may have just disliked the classes. The fact that the deceased quit after the alleged influencer was involved in his life was equally ambiguous.

[43] But, if one already believes that the influencer is ill-motivated, then the leap to saying that her involvement must have been causative is more understandable.

[44] Similarly, in Carinci v. Carinci, 2023 ONSC 6094, on one day of the several years in which the alleged influencer lived with her elderly mother, the mother had some bruises on an arm. Without an assumption that the influencer is evil, the fact that an elderly person has some bruising on one day out of several years of cohabitation is not an indication of anything untoward in the relationship among the cohabitors.

[45] Also in Carinci, the excluded child made sure to tell me that the alleged influencer, “had a troubled past, which included…abusing hard drugs, and residing with a boyfriend who was a drug dealer.” Then, I was told that on one particular day, an odd smell came from the sister’s room in the mother’s house. Again, without the predisposition that the sister was evil, what possible relevancy could a weird smell emanating from the sister’s room on one day have on the question of whether the mother had capacity or was subject to undue influence? The mudslinging about the influencer’s early adult life was denied and also had no probative value toward either the weird smell or the issues of incapacity and undue influence without one or more leaps of logic and assumptions.

[46] Evidence needs to be relevant. It needs to make more or less likely an inference that a fact exists or existed. Subjective speculations whose relevancy hinge one one’s predisposition to find the alleged influencer evil, are of no assistance to the task at hand. That is why these motions should be easy and the lengthy historical litanies of events, that can only be relevant when accompanied by purely speculative assumptions, are of no help.

[47] I recited some unnecessary facts above to ensure that the respondent or anyone else who might review these reasons does not think I missed them. But this motion can be decided based on simple facts that are not readily disputed:

a. The family’s long-time lawyer, Mr. O’Donahue did not believe that Mrs. Dinally wanted the house to be given to Yasmin alone. He refused to accept the retainer to do so; b. Mr. Dinally’s severance of the joint tenancy just weeks after creating it showed that his testamentary desires were malleable; c. Mr. Dinally made his new will after being deprived of his phone, TV, and walks outside by Yasmin Dinally, while complaining to his doctor’s that she controls his life and that he is unable to argue with her; and d. Mr. Sherman’s statutory declaration, his “forgetting” to transfer the house into joint title if Mr. Dinally wanted it to go to his daughter alone, and the subsequent claim that he has no notes, renders his recollection and his ability to test capacity and undue influence less than determinative at this stage. It rebuts the presumption in Johnson at para. 14 (if it applies at all given that Mr. O’Donoghue was the deceased’s long-time lawyer).

[48] As was the case in Carinci as well, the respondent fights against production by giving partial production of legal and medical files and refusing to allow cross-examinations. The respondent says she consented to the applicant obtaining any medical files already. I would expect the cross-examination of Mr. Sherman to be enlightening especially concerning his testing for undue influence. I am not sure what tests lawyers can apply before concluding there is no undue influence. I would expect, at minimum, that whatever questions may be asked or whatever tests may be administered, they probably should not have been put while Yasmin Dinally remained in the room.

[49] The medical records raise some issues on capacity. But that is not the reason to let this case move forward to third party production and trial. The risk factors for undue influence are in play. Mr. Dinally suffered a loss of his wife. He was alone with and relied on his daughter. He complained that she controlled him and deprived him of social contact. Mr. Dinally made several changes to his testamentary intention all based on a presumed intention of his deceased spouse that was specifically disavowed by the family’s long-time lawyer. Yasmin produced videos that raise questions at least about their timing if not the rather ill-defined content. Yasmin retained Mr. Sherman for Mr. Dinally and remained in the room throughout according to the lawyer’s statutory declaration.

[50] None of this turns on the family history. All of these facts are probative of undue influence (and to a much lesser degree capacity) without assuming in advance that Yasmin Dinally was ill-motivated.

[51] I also find it relevant and unfair for partial production to be made by an estate trustee using an informational imbalance to her own benefit. I do not dissuade production of third-party files that are already obtained without much cost and cause no further delay. But production should be complete and not cherry-picked. Sworn evidence calls for cross-examination. The process must be fair at each stage.

[52] I reiterate that these types of motions should be resolved on consent with customized production processes as circumstances dictate. If there is a real question of whether the minimal threshold is met, the applicant’s evidence must be relevant to the issues of undue influence and incapacity.

[53] I am not finding that, as a matter of law, family history can never be relevant. If, for example, proof of animus is needed, then specific historical facts can be relevant. But, as always, before adducing evidence one should ask whether the proposed piece of evidence makes a fact (including animus) more or less likely if not accompanied by an unproven or subjective assumption.

[54] Every family has its own stuff. Irrelevant mudslinging does not help and typically weighs against the pitcher.

[55] Mr. McConnell submits that the court should not question Mr. Dinally’s wish to do the right thing with his property in his circumstances. I understand the law’s protection of testamentary freedom. I would respect Mr. Dinally’s wishes if I had confidence that his will and property transfers reflected his wishes and not those of Yasmin Dinally. And that is the main question for trial.

[56] I find the that both undue influence and incapacity are in issue. There is evidence which, if believed, may make either claim succeed. The respondent’s answer on incapacity is cogent. But it is not complete. Moreover, once undue influence is proceeding, there is no real risk of the harms identified in Johnson.

[57] The applicant seeks his costs on a partial indemnity basis in the amount of almost $23,500. The respondent seeks closer to $25,000 on a partial indemnity basis. She also submits that if the applicant succeeds, his costs should nevertheless be set at $15,000 all-inclusive. The respondent says she had a more time-intensive role because she had documents to review. In my view, the amounts claimed by both sides are on the high end of the reasonable range. I fix the applicant’s costs at $20,000 all-inclusive and order the respondent to pay the costs within thirty (30) days.

FL Myers J Date: October 31, 2023