COURT FILE NO.: CV-22-90007 DATE: 2024/07/16 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

PATRICIA GRAHAM Applicant – and – THE ESTATE OF SHEILA MARY MCNALLY, deceased and KATHERINE BLAIS, Estate Trustee of the ESTATE OF SHEILA MARY MCNALLY, deceased, KATHERINE BLAIS in her personal capacity, LAURA ROSEMARY GRAHAM Respondents

Counsel: Cheryl Letourneau, for the Applicant Amanda Estabrooks, for the Respondent, Katherine Blais, personally and in her capacity as Estate Trustee of the Estate of Sheila Mary McNally, deceased

HEARD: October 24, 2023 and April 19, 2024 (by videoconference on both dates), and in writing

RULING ON MOTION

CORTHORN J.

Introduction

[1] Patricia Graham calls into question the validity of a will executed by her late sister, Sheila Mary McNally, in November 2020 (“the Will”). [1] Patricia relies on three grounds in support of her application for a declaration that the Will is invalid: (a) lack of testamentary capacity; (b) undue influence; and (c) suspicious circumstances surrounding the execution of the Will.

[2] The respondent, Katherine Blais, had known Sheila for approximately 13 years prior to the execution of the Will, and for 14 years by the time Sheila passed away in October 2021. In the Will, Katherine is named as the primary estate trustee; Katherine’s spouse, Claude Lacasse is named as the alternate estate trustee. Katherine and Claude are also named as beneficiaries.

[3] In addition to naming Katherine as the primary estate trustee in the Will, Sheila named Katherine as her attorney for property and attorney for personal care. At no time prior to Sheila’s death did Katherine act in either capacity.

[4] Katherine, personally and in her capacity as estate trustee, brings a motion for an order dismissing the application. Katherine submits that Patricia has not met the minimum evidentiary threshold required for the court to permit the application to proceed.

[5] The respondent, Laura Rosemary Graham, is Patricia’s adult daughter and Sheila’s niece. In the Will, Sheila established a trust fund for Laura. Pursuant to the terms of the Will, during her lifetime, Laura is, at the discretion of the estate trustee, to benefit from the income generated by the fund and from the capital. Laura did not deliver a notice of appearance to the application and was not represented on the return of the motion.

Background

The Parties

[6] Sheila died in October 2021 in Ottawa, Ontario. There is no evidence as to Sheila’s date of birth. Based on Patricia’s evidence as to the duration of her relationship with Sheila, it appears that Sheila was approximately 80 years old when she died.

[7] There is no evidence as to where Sheila lived throughout her adult life. Based on evidence regarding properties owned by Sheila, and on evidence as to where she was living throughout her friendship with Katherine, it appears that Sheila resided in Ottawa throughout her adult life. There is no evidence to suggest that Sheila was ever married or that she had any children.

[8] Patricia is 84 years old and is Sheila’s older sister. Patricia lived in Ottawa for at least a portion of her adult life. Patricia left Ottawa 60 years ago, lived outside Canada intermittently in the early part of those six decades and has, for the past 52 years, resided in Kelowna, British Columbia. In the years prior to her husband’s death, Sheila spent six months of the year living in Mexico in a home owned by her late husband.

[9] It is undisputed that Patricia last saw Sheila in September 2011. Patricia and her husband visited Ottawa, together with one of Patricia’s children who was then living in the Toronto area. The purpose of the visit was to celebrate Sheila’s birthday. Patricia and Sheila did not see each other again after that visit. The sisters continued to have regular contact, speaking by telephone on a weekly basis; they sometimes spoke for hours at a time.

[10] The regular telephone contact between Patricia and Sheila ended in February 2019. Between that month and the date of Sheila’s death, the sisters had a single, brief telephone call on one occasion. In either 2019 or 2020, Patricia called Sheila to wish her a happy birthday. That phone call consisted of nothing more than Patricia saying “Happy Birthday” to Sheila. For a reason unknown to Patricia, and not explained in the evidence before the court, the call ended immediately following Patricia’s extension of that birthday wish.

[11] Laura will turn 53 in August 2024. Like her mother, Laura resides in Kelowna. Patricia and Laura are the co-owners and residents of a duplex. Laura lives in the upper-level unit and Patricia in the lower-level unit.

[12] Sheila, Katherine, and Claude first met, as neighbours, in 2007. They remained friends until Sheila’s death. Their friendship continued despite the fact that Katherine and Claude moved from the neighbourhood in which they were living when they first met Sheila – initially to Rockland, Ontario and then, most recently, to Aylmer, Quebec.

The Will

[13] In the first half of 2019, Sheila began to take steps to update her estate planning documents and powers of attorney for property and personal care. Sheila met and spoke by telephone with a lawyer from KMH Lawyers in Ottawa. Ultimately, Sheila did not proceed with KMH Lawyers to update her estate planning documents.

[14] In the second half of 2020, Sheila retained J. Paul Francis, of Francis Mehr Lawyers in Ottawa, to update her estate planning documents. The Will was prepared by that office and executed by Sheila in November 2020. Mr. Francis is one of the two individuals who witnessed the execution of the Will.

[15] The bequests are set out in paras. 3(d)(i)-(iii) of the Will. In summary, Sheila provided that her estate is to be distributed as follows:

• Her “Christmas crib and figurines” are to be delivered to Katherine and Claude, or to the survivor of them for their own use absolutely.
• Forty (40) percent of the residue of the estate is to be set aside and held as a trust fund during Laura’s lifetime. The estate trustee has absolute and unfettered discretion regarding the extent to which Laura will receive income generated by and portions of the capital invested in the fund. The trust fund will not vest in Laura.
• The rest and residue of the estate is to be transferred to Katherine and Claude “equally or to the survivor of them for their own use absolutely.”

[16] Patricia is not a beneficiary under the Will.

[17] Prior to executing the Will, Sheila executed a will in 2001 (“the 2001 Will”). That will remained in force and effect until the Will was executed in 2020. Neither Patricia nor Laura was a beneficiary under or otherwise named in the 2001 Will.

The Evidence in Support of the Application

[18] In support of her application for a declaration as to the invalidity of the Will, Patricia relies on a 20-paragraph affidavit sworn by her in October 2022 (“the 2022 affidavit”). The 2022 affidavit is before the court on the motion. Patricia was not, for the purpose of the motion, cross-examined on that affidavit.

[19] In the 2022 affidavit, Patricia briefly reviews the terms of the Will; the historical nature of her relationship with her late sister; her limited knowledge of the friendship between Sheila, Katherine, and Claude; and information received from Patricia’s niece (Sharon Crossan).

[20] The first and final paragraphs of the 2022 affidavit are not substantive in content. In the final substantive paragraph of the 2022 affidavit (i.e., para. 19), Patricia says the following: “I have challenged the validity of my sister[’]s Last Will and Testament because she did not leave me anything and she left the majority of her estate to a relative stranger who had taken her to see at least two different lawyers to draft a Will. The circumstances surrounding the preparation of the will are suspicious”.

[21] Patricia also relies on an affidavit, sworn by her in June 2023, included in her responding motion record (“the 2023 affidavit”). The 2023 affidavit is 20 paragraphs long. Once again, the first and final paragraphs are not substantive in content. In September 2023, Patricia was cross-examined on the 2023 affidavit.

[22] In the 2023 affidavit, Patricia describes her late sister as her only living sibling and “lifetime Best-friend and supporter for 79 years”. In the 2023 affidavit, Patricia reviews the history of her relationship with her late sister; sets out her understanding of Katherine’s involvement in the steps taken by Sheila in 2019 to update her estate planning documents; and expresses her general concerns about the Will.

[23] At paras. 14, 15, and 18 of the 2023 affidavit, Patricia expresses her specific concerns regarding the trust fund for Laura’s benefit. The specific concerns include that (a) the fund will not vest in Laura, and (b) distributions from the fund are entirely at the discretion of the estate trustee.

[24] At para. 19 of the 2023 affidavit, Patricia describes her late sister’s interest in “the plight of the homeless and the less fortunate as well as having great love for animals and support for the SPCA.” Patricia concludes para. 19 by stating her belief that “absent of influence, Sheila would have wanted to recognize and also contribute to those causes as well as ensure Laura’s “trust” would be fully VESTED with her, for her full benefit” (all upper-case lettering, as in the original).

The Evidence in Support of the Motion

[25] In support of her motion for an order dismissing the application, Katherine relies on an affidavit sworn by her in the first half of 2023 (“the Blais affidavit”). The date on which the Blais affidavit is sworn is identified as “5/3/2023”. The affidavit was sworn in Gatineau, Quebec. It is not clear whether the date on which the affidavit was sworn is May 3, 2023 or March 5, 2023. The date on which the affidavit was sworn is not, in any event, relevant to the issues to be determined on the motion.

[26] The Blais affidavit is 54 paragraphs long. All but the first of the 54 paragraphs is substantive in nature. In her affidavit, Katherine reviews the terms of the Will; her and Claude’s relationship with Sheila over 14 years; Sheila’s level of social and other activity during that 14-year period; Sheila’s decision to update her estate planning documents; Sheila’s health; steps Katherine took, subsequent to Sheila’s death, to permit Sheila’s family members to gather family mementos; and other steps taken by Katherine generally in her role as estate trustee.

[27] In September 2023, Katherine was cross-examined on her affidavit.

[28] Where necessary, the details of Katherine’s affidavit evidence and evidence on cross-examination are discussed in the Analysis section of the ruling, which follows below.

The Issues

[29] The sole issue to be determined on this motion is whether Patricia has met the minimal evidentiary threshold required for the court to permit the application to proceed. Specifically, has Patricia adduced, or pointed to, evidence which, if accepted, calls into question the validity of the Will on any one or more of the three grounds upon which she relies?

[30] If the court finds that the evidentiary threshold is met, then an order for directions is required. Prior to the return of the motion, Patricia and Katherine, personally and in her capacity as estate trustee, agreed upon the terms of an order for directions pursuant to which they intend the application to proceed.

Disposition

[31] For the reasons which follow, I find that Patricia has failed to adduce, or point to, evidence which, if accepted, calls into question the validity of the Will. The motion is granted; the application is dismissed.

[32] While the evidentiary threshold on an application of the kind brought by Patricia is low, the evidence supporting the validity of an objection must be more than the suspicion of the objector. The vast majority of Patricia’s evidence is nothing more than suspicion or speculation on her part.

[33] When one looks beyond the evidence in support of Patricia’s three specific objections to the Will, and to Patricia’s evidence more broadly, it is clear that Patricia (a) is unable to accept that Sheila chose to leave a large portion of her estate to friends of 14 years, rather than to a member of her family, (b) is unable to comprehend why Sheila made that decision, and (c) is upset that Sheila provided for a trust fund for Laura’s benefit during her lifetime and did not provide for Laura to inherit at least a portion of the estate.

[34] Yet, Patricia accepts that, and understands why, Sheila chose, in the 2001 Will, to appoint another friend as estate trustee, to make that friend the primary beneficiary of the estate, and to not include either Patricia or Laura as a beneficiary of any kind (i.e., the 2001 Will did not include a trust fund during Laura’s lifetime).

[35] It would be unfair to require Katherine, in her capacity as estate trustee, to defend the Will simply because Patricia, a disgruntled relative of Sheila’s, makes a request for proof of the Will in solemn form.

[36] As the successful party on the motion, Katherine, personally and in her capacity as estate trustee, is entitled to her reasonable costs of the motion and of the application. Patricia shall pay to Katherine, personally and in her capacity as estate trustee, her reasonable costs of the motion and of the application.

[37] In the event the parties are unable to resolve the issue of costs, they shall deliver costs submissions in accordance with the directions provided at the conclusion of this ruling.

The Law

[38] Patricia’s application is made pursuant to r. 75.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That rule is titled “Proof of a Testamentary Instrument” and provides as follows: “An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.”

[39] In Neuberger v. York, 2016 ONCA 191, the Court of Appeal for Ontario makes it clear that an “interested person”, within the meaning of r. 75.01, is not, as of right, entitled to require that the subject testamentary instrument be proved in solemn form. The court provides two reasons in support of that principle.

[40] First, r. 75.01 operates in conjunction with r. 75.06; the latter rule is titled “Application or Motion for Directions”. Rule 75.06(1) provides that “Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.” Rule 75.06(3) lists the matters about which “the court may” make an order for directions.

[41] At paras. 86 and 87 of Neuberger, the court explains that r. 75.06(3) is permissive – “the court may” direct certain things to happen. The rule does not include mandatory language such as “must” or “shall”. Therefore, when rr. 75.01 and 75.06 are read together, it is clear that, on an application pursuant to r. 75.01, “the court has a discretion whether to order that a testamentary instrument be proved as well as a discretion over the manner in which the instrument is proved”: at para. 87.

[42] Second, it is important to prevent estates from being exposed “to needless expense and litigation”: at para. 88. For that reason, the court will not require proof of a testamentary instrument in solemn form unless the interested person meets “some minimal evidentiary threshold”: at para. 88.

[43] The court concludes its explanation of this second reason by stating, at para. 88, that “it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.”

[44] The court describes the minimal evidentiary threshold to be met. The interested person must adduce, or point to, “some evidence which, if accepted would call into question the validity of the testamentary instrument that is being propounded” : at para. 89. If the moving party or applicant fails to meet that evidentiary threshold, or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed: at para. 89.

[45] In Seepa v. Seepa, 2017 ONSC 5368, Meyers J. considers, in the context of the goals of the civil justice system, what is meant by the phrase “some minimal evidentiary threshold”. At para. 35, Meyers J. expresses the following view:

At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to be given tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits. Normally, a litigant must just plead facts that support a cause of action to become entitled to use the full panoply of fact-finding tools provided by the Rules. In estates cases, more is required. Some evidentiary basis to proceed is required[.]

[46] At para. 40, Meyers J. concludes his contextual review of the phrase “some evidentiary threshold” by stating the following:

It must be borne in mind at all times that what is at issue is whether the court should exercise its discretion to require proof in solemn form. The applicant will not likely be able to prove the case on the merits. This is not summary judgment. The question is whether the applicant ought to be able to put the estate and the beneficiaries to the burden of proof, expense, and delay by requiring proof in solemn form and, if so, what process of proof in solemn form will best achieve that outcome, be consonant with the goals of the civil justice system, and recognize the particular concerns that are to be balanced in the estates litigation context.

[47] If Patricia is permitted to proceed with her application, then Katherine, personally and in her capacity as estate trustee, will be required to prove the Will in solemn form. In her notice of application, Patricia sets out three grounds which she submits support requiring proof of the Will in solemn form. I review each of those three grounds in the next section of the ruling.

Analysis

[48] I will deal first with the alleged lack of testamentary capacity, then the alleged undue influence, and conclude with the alleged existence of suspicious circumstances surrounding the execution of the Will.

Lack of Testamentary Capacity

[49] At para. 1(a) of her notice of application, Patricia requests that the court declare the Will is invalid “on the grounds that [Sheila] lacked testamentary capacity to execute [the Will]. In support of that request, at paras. 2(m) and (n) of the notice of application, Patricia makes the following assertions:

(m) That as far back as 2007, I noted that [Sheila] showed signs of confusion and difficulty calculating numbers. (n) That [Sheila] suffered from mental illness most of her life and was not of sound mind when she executed [the Will].

[50] What evidence has Patricia placed before the court which, if accepted, calls into question the validity of the Will on the ground that Sheila lacked testamentary capacity? The answer is that Patricia has not placed any evidence before the court that satisfies the minimal evidentiary threshold.

[51] In her 2022 affidavit, Patricia does not in any way address the issue of Sheila’s testamentary capacity. More specifically, the 2022 affidavit does not include any evidence in support of the assertions made in paras. 2(m) and (n) of the notice of application.

[52] In her 2023 affidavit, Patricia describes a telephone call she had with Sheila in February 2019. Patricia’s evidence is that, during the telephone conversation, Sheila said she (a) would be naming Katherine as her estate trustee, and (b) wished to be buried in an unmarked grave, the location of which would be known only to Katherine. Patricia’s evidence is that the impact of that conversation was such that she felt, at the time, that Sheila no longer wanted Patricia in her life. Patricia’s evidence is that she was distraught and dismayed following this telephone conversation.

[53] In her 2023 affidavit, Patricia expresses the view that Sheila’s behaviour in early 2019 is evidence that Sheila was in a “strange and emotional state” and behaving in a manner that was “rather out of character” for the Sheila whom Patricia knew.

[54] In neither her two affidavits, does Patricia address Sheila’s mental or emotional state from February 2019 to and including the date in November 2020 when the Will was executed.

[55] When cross-examined in September 2023, Patricia did not provide any anecdotal evidence about Sheila’s condition in the final 2.5 years of Sheila’s life (i.e., from February 2019 to October 2021). Patricia’s evidence is that, with one exception, she did not speak with her sister again after the February 2019 telephone conversation described in para. 52, above. The exception is the birthday call described in para. 10, above.

[56] On cross-examination, Patricia testified she believed that, as of early 2019, Sheila was in pretty good health. In support of that belief, Patricia cited Sheila’s ability, historically, to hold her own during the lengthy telephone conversations between the sisters.

[57] On cross-examination, Patricia also testified about her belief that Sheila fits the criteria for an individual suffering from “schizoid personality disorder”. Patricia’s belief in that regard is based on the difficulties Patricia thinks Sheila had, throughout her life, maintaining friendships.

[58] I find that the evidence upon which Patricia relies in support of Sheila’s alleged lacked testamentary capacity in November 2020 is not substantiated by any objective evidence. Patricia’s evidence is nothing more than speculation on her part.

[59] I contrast Patricia’s unsubstantiated speculation with the detailed narrative provided by Katherine in the Blais affidavit – a narrative that withstood the test of, and was unshaken on, cross-examination. At para. 47 of the Blais affidavit, Katherine summarizes Sheila’s approach to decision-making as follows: “Prior to her death, Sheila did not have issues with her mental faculties or competency. Sheila did take time to mull over ideas and make a decision[,] but that was her way.”

[60] In summary, there is no evidence, which meets the applicable threshold, to support the assertion that Sheila lacked testamentary capacity when she executed the Will in November 2020.

Undue Influence

[61] At para. 1(b) of the notice of application, Patricia asks the court to declare that the Will is invalid because Sheila was unduly influenced in making it. At paras. 2(f)-(k) of the notice of application, Patricia asserts that Katherine unduly influenced Sheila, including to: (a) abandon her relationship with Patricia; (b) name Katherine as the sole estate trustee; (c) name Katherine as a beneficiary of the estate; and (d) name Claude as a contingent beneficiary of the estate.

[62] For the purpose of the motion, I leave aside that the assertions made at sub-paragraphs (b)-(d), above, do not accord with the contents of the Will.

[63] Before addressing Patricia’s specific assertions regarding undue influence and the evidence upon which Patricia relies in support of those assertions, I will briefly review the law regarding undue influence.

The Law

[64] Patricia relies on the decision of McArthur J. in Young v. Prychitko et al., 2022 ONSC 1502, for its summary of the principles relevant to undue influence and suspicious circumstances. The principles to be applied in considering whether undue influence has been exerted are addressed at paras. 20-21. I summarize those principles as follows:

• For undue influence to exist, there must be coercion.
• For the court to conclude that undue influence has been exerted by someone on the testator, the influence imposed on the testator must be “so overpowering that the document reflects the will of the influencer and not that of the deceased”.

[65] At para. 21, McArthur J. highlights the importance of the history of the relationship between the testator and the individual by whom the testator is said to have been unduly influenced. McArthur J. lists a series of circumstances in which a testator might be unduly influenced:

… where the testator is dependent on the [alleged influencer] 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 change to other legal documents such as powers of attorney. See Gironda v. Gironda, 2013 ONSC 4133.

[66] I turn next to consider whether there is any evidence which, if accepted, calls into question the validity of the Will on the ground that Sheila was unduly influenced by Katherine.

The Evidence

[67] At paras. 2(f)-(h) of the notice of application, Patricia makes the following assertions as to how Katherine was able to unduly influence Sheila:

(f) That during the later part of her lifetime, Sheila Mary McNally was devoted to Saint Brother Andre Bessette. (g) That Sheila Mary McNally would have revered and adored anyone who was also devoted to Saint Brother Andre Bessette. (n) That Katherine Blais had advised Sheila Mary McNally that she was a “Bessette” and related to the family of Saint Brother Andre Bessette and thereafter she had control over Sheila Mary McNally.

[68] In support of those assertions, at para. 12 of her 2022 affidavit, Patricia says that “Sheila was a devout follower of Brother Andre Bessette. I believe that Sheila would have been influenced by Katherine based on Sheila’s devotion to Brother Andre if she thought there was a connection between Katherine and the Bessette lineage.” In her 2022 affidavit, Patricia does not otherwise address the subject of undue influence.

[69] In her 2023 affidavit, Patricia does not address the subject of undue influence at all.

[70] The points listed below summarize Patricia’s evidence, on cross-examination, regarding the alleged undue influence:

• Patricia believes that once Sheila learned that Katherine is related to a Bessette, the friendship between Sheila and Katherine grew stronger than it would have been prior to that point.
• Based on things Sheila said to Patricia about Katherine, Patricia believes that Sheila trusted Katherine. Patricia’s belief is that, in Sheila’s mind, as someone related to a saint, Katherine had to be “a really good person.”

[71] When questioned as to when or how Katherine used her Bessette lineage to exert influence over Sheila, Patricia was unable to provide a single, concrete answer. In that regard, I consider the following question and answer from Patricia’s cross-examination:

Q. 102 Okay. So maybe coming back to my original question, so are you suggesting that Katherine used her lineage with the Bessettes as a way to exert influence over Sheila? A. I don’t know, you know, I wasn’t there at any time when they were talking about it, okay. But I know that Sheila believed from things that she said or intimated that Katherine was like a saintly person. She trusted her because she thought someone related to a saint has got to be, you know, a really good person.

[72] As another example of Patricia’s lack of evidence in support of the alleged undue influence, I consider the following series of questions and answers:

Q. 110 Okay. And so I think I just want to come back to it because I just want it to be clear. Are you saying that Katherine exerted influence over Sheila and used her connection to the Bessettes to do that? A. I can’t say that she knowingly did that. But I know that Sheila was impressed. That I do know. Q. 111 Okay, all right. And that’s the extent --- A. --- Brother Andre and spoke of Katherine. I do believe that she thought that Katherine, being related to a saint, being a direct descendant of a saint, has got to be an honourable, holy, trustworthy person. And it gave her confidence to continue the friendship because she trusted her based on that belief.

[73] In answer to a question posed later in the cross-examination (Q. 182), Patricia testified that because of Sheila’s reaction to Katherine (i.e., as described in the answers quoted above), Sheila saw Katherine “differently from all other friends”.

[74] On cross-examination, Patricia acknowledged that, while she believes that Sheila may have been influenced when setting the terms of the trust for Laura, she (a) has no evidence to support her belief in that regard, and (b) does not know who may have influenced Sheila on that subject:

Q. 304 Okay, so who are you saying influenced her to specify that it was a vested trust? Who are you saying influenced her? A. Well I don’t know. It would have to be Katherine, I guess, or maybe her lawyer said that. I don’t know.

[75] Patricia’s evidence regarding the history of the relationship between Katherine and Sheila, and as to Sheila’s alleged positive view of Katherine as a person, even if accepted, is not sufficient to call into question the validity of the Will on the ground that Sheila was unduly influenced by Katherine. Patricia has not adduced, and is unable to point to, any evidence which, if accepted, supports a conclusion that Katherine attempted to influence Sheila in any way regarding the 2020 Will.

[76] Even if the court were to conclude that Patricia has adduced, or is able to point to, such evidence (and the court does not reach that conclusion), Patricia has not adduced, and is unable to point to, any evidence which, if accepted, supports a conclusion that Katherine’s attempts to influence Sheila were successful.

[77] If one considers the factors for undue influence discussed by McArthur J. at para. 21 of Young (quoted at para. 65, above), yet again, the evidence upon which Patricia relies falls short of the minimal evidentiary threshold.

[78] For example, the first factor is the testator’s dependence on the alleged influencer for emotional and physical needs. At para. 6 of the 2022 affidavit, Patricia describes Sheila as “a loner and reclusive who only left her house when necessary.” At para. 9 of the 2022 affidavit, Patricia describes the extent of Katherine’s involvement in Sheila’s life as helping Sheila out now and then with the garden of her home, painting rental suites owned by Sheila, and spending time with Sheila on her birthday.

[79] There is nothing in the 2023 affidavit which addresses Sheila’s dependence on Katherine. Patricia’s evidence on cross-examination does not provide any support for a conclusion that Sheila was emotionally or physically dependent on Katherine.

[80] As another example, I consider the second last of the factors discussed by McArthur J. in Young: “where the testator has made a new will not consistent with prior wills”. The Will is consistent with the 2001 Will. In both wills, Sheila (a) appointed a non-family member as the estate trustee; and (b) chose not to make any family member a beneficiary who inherits a portion of her estate absolutely.

[81] I have considered each of the factors discussed at para. 21 of Young.

[82] I find that there is no evidence, which meets the applicable threshold, to support the assertion that Sheila was unduly influenced by Katherine or by any other individual regarding the terms of the 2020 Will.

[83] I turn to the third of the three grounds upon which Patricia relies in support of her request for a declaration that the 2020 Will is invalid – suspicious circumstances at the time the Will was executed.

Suspicious Circumstances

[84] At para. 1(b) of the notice of application, Patricia asks the court to declare that the Will is invalid because “there were suspicious circumstances at the time of the execution of [the Will]”. The notice of application does not include particulars of the suspicious circumstances Patricia alleges were present at the time of execution of the Will. For example, in the grounds of the notice of application, Patricia does nothing more, at para. 2(l), than repeat the contents of para. 1(b) from the prayer for relief.

[85] Before addressing the evidence upon which Patricia relies in support of the alleged existence of suspicious circumstances, I will briefly review the law regarding suspicious circumstances.

The Law

[86] In Vout v. Hay, [1995] 2 S.C.R. 876, the Supreme Court of Canada identifies that suspicion regarding the execution of a will may be raised by circumstances that fall into one or more of three categories. Two of those categories are discussed in the previous sections of this analysis – lack of testamentary capacity and undue influence. The third category arises from the circumstances surrounding the preparation of the will.

[87] When considering the circumstances in which a will was prepared, it is important to remember that the propounder of a will is aided by the following 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 p. 889. If the court concludes that suspicious circumstances are present, then the presumption is rebutted and the burden of proof reverts to the propounder of the will to establish the testator’s knowledge and approval of its contents.

[88] I turn next to consider whether there is any evidence which, if accepted, calls into question the validity of the Will on the ground that there were suspicious circumstances at the time of execution of the Will such that Sheila did not have knowledge and approve of its contents.

The Evidence

[89] There is no evidence before the court that the Will was executed without the requisite formalities.

[90] If the application were permitted to proceed, and absent any evidence that the Will was executed without the requisite formalities, Katherine, personally and in her capacity as estate trustee, would be entitled to rely on the rebuttable presumption that Sheila had knowledge and approved of the contents of the Will.

[91] There is no evidence in either of Patricia’s affidavits or from her cross-examination which, if accepted, calls into question the circumstances at the time of execution of the Will. Patricia has not adduced, nor is she able to point to, any evidence that raises a suspicion about the circumstances at the time of execution of the Will.

[92] In summary, there is no evidence to rebut the presumption that Sheila had knowledge of and approved the contents of the Will. Although it is not necessary to do so on the motion, I would go one step further and highlight that Katherine’s evidence is sufficient to dispel any suspicion, that Patricia has attempted to raise on her application, about the circumstances at the time of execution of the Will.

[93] Katherine’s uncontradicted affidavit evidence is that she had no involvement in Sheila’s selection of a lawyer to prepare the Will, in the substantive content of the Will, or in Sheila’s selection of an estate trustee. On cross-examination, Katherine testified that,

• in 2018, Sheila discussed with Katherine the possibility of her being named as an estate trustee and being a trustee to manage a trust fund for Laura;
• at no time prior to the execution of the Will did Sheila discuss with Katherine an intention to make Katherine a beneficiary of Sheila’s estate;
• prior to Sheila’s death, Katherine had no knowledge of the contents of the Will;
• Katherine did not drive Sheila to the appointment with Mr. Francis, nor did Katherine attend that appointment with Sheila; and
• it was not until Sheila’s admission to the hospital in October 2021, in the days leading up to Sheila’s death, that Katherine saw the power of attorney for personal care in which she is named the attorney in that capacity. At that time, Sheila asked Katherine to retrieve the document from Sheila’s home.

[94] With any suspicion raised about the circumstances in which the Will was executed dispelled, the burden of proof would revert to Patricia. She would be required to establish the invalidity of the Will on the grounds of either a lack of testamentary capacity or undue influence. As discussed in the two preceding sections of this analysis, Patricia does not meet the minimal evidentiary threshold on either of those grounds.

[95] Returning to the evidentiary burden on Patricia at this stage of the proceeding, there is no evidence which, if accepted, calls into question the validity of the Will on the ground that there were suspicious circumstances at the time of execution of the Will such that Sheila did not have knowledge and approve of its contents.

Conclusion

[96] For the reasons set out above, the motion is granted and the application is dismissed in its entirety.

Costs

[97] Katherine, personally and in her capacity as estate trustee, is the successful party on the motion and on the application. She is entitled to her reasonable costs of both the motion and the application.

[98] Patricia shall pay to Katherine, personally and in her capacity as estate trustee, her reasonable costs of the motion and of the application.

[99] As noted in the introductory section of this ruling, Laura did not respond to the application and was not represented on the return of the motion. She did, however, deliver an affidavit following the October 2023 appearance on the motion.

[100] Laura delivered an affidavit in response to the court’s concern as to whether Laura required a litigation guardian. The court’s concern in that regard arose from the description in the materials before the court of the trust created for Laura in the Will as a “Henson-like trust”. After reviewing Laura’s eloquently worded affidavit, the court was satisfied that Laura does not require a litigation guardian.

[101] It would not be reasonable for Laura to incur any costs on the motion. Therefore, if Laura incurred costs for the preparation and delivery of her affidavit, she is entitled to her reasonable costs in that regard. Patricia shall pay to Laura her reasonable costs for the preparation and delivery of the affidavit.

Time Limit Within Which to Resolve Costs

[102] The parties, including Laura, have 20 days from the date on which this ruling is released within which to resolve the issue of costs. If the parties resolve the issue of costs within that period, Katherine’s counsel shall advise the court that the issue of costs has been resolved. That information shall be provided by way of an email, to my attention, sent to the SCJ Assistants generic email account.

Costs Submissions, if Required

[103] If the parties are unable to resolve the issue of costs within the 20-day period specified above, then they shall deliver written costs submissions as follows:

a) Their respective primary submissions shall be limited to a maximum of four pages (excluding a bill of costs); b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”); c) Case and other authorities referred to in the submissions shall be hyperlinked. For any case or other authorities that are not available through a hyperlink function, a copy in pdf format shall be included with the submissions; d) Case or other authorities, whether hyperlinked or provided in pdf format, shall comply with Rule 4 of the Rules with respect to font size; e) In addition to electronically filing the submissions, the submissions shall be sent by email to the SCJ Assistants generic email, to my attention. For the purpose of sub-paragraphs (f)-(h), below, “deliver” includes both electronic filing and sending a copy by email to my attention as directed in this sub-paragraph; f) Katherine and, if she chooses to pursue costs, Laura, shall deliver their respective written submissions by 5:00 p.m. on the thirtieth business day following the date on which this ruling is released; g) Patricia shall deliver her responding submissions by 5:00 p.m. on the fortieth business day following the date on which this ruling is released; and h) Katherine and, if applicable, Laura shall deliver their respective reply submissions, if any, by the forty-fifth business day following the date on which this ruling is released; and i) If no submissions are delivered pursuant to subparagraph (f) above, there will be no further order with respect to costs.

Madam Justice Sylvia Corthorn Date: July 16, 2024

Note: [1] In the balance of this ruling, I refer to the sisters by their respective first names. I do so for ease of reference and ease of reading. For similar reasons, once introduced, I refer to the individual respondents by their respective first names. I intend no disrespect by referring to these individuals by their respective given names.