Court File and Parties

COURT FILE NO.: CV-23-00000003-00ES DATE: 2024Jan26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINDA TIBBUTT, SCOTT TIBBUTT and TERESA TIBBUTT, Applicants/Moving Parties AND: BETTY LOU DORRINGTON, LEE DORRINGTON and JANET AASEN, Respondents

BEFORE: Lacelle J.

COUNSEL: Kurt R. Pearson, for the Applicants/Moving Parties Scott McMahon, for the Respondents, Betty Lou Dorrington and Lee Dorrington

HEARD: November 22, 2023

Endorsement

Introduction

[1] Evelyn Tibbutt died in December of 2022 when she was 99 years old.

[2] The Applicants and the Respondents are in a dispute involving Evelyn’s estate. Evelyn and her husband had two children, George and Betty Lou. Evelyn’s husband and George died before she did. The Applicants are George’s children (Scott Tibbutt and Teresa Tibbutt) and Evelyn’s daughter-in-law (Linda Tibbutt). The Respondents are Evelyn’s daughter, Betty Lou Dorrington, her husband Lee Dorrington, and their daughter Janet Aasen. Betty Lou Dorrington is Evelyn’s sole surviving child.

[3] Evelyn leaves a modest estate. The only asset with significant monetary value was her home which sold for $115,000.00. The proceeds of the sale are in an account jointly held with Betty Lou.

[4] The Applicants contest Evelyn’s will. Specifically, they have concerns surrounding Evelyn’s capacity to make a will when she did, and with respect to the circumstances of the execution of that will. They bring this preliminary motion, typically referred to as a Seepa motion, seeking an order compelling the production of various documents. In the main, they seek the production of files or notes from Evelyn’s physician and others who cared for her, and the lawyer who prepared powers of attorney for personal care and property for her benefit. They submit the documents and records they seek are necessary to ascertain the validity and circumstances surrounding the execution of Evelyn’s will.

[5] The Respondents Betty Lou and Lee Dorrington are opposed to the order sought on the motion. Their daughter Janet Aasen has not participated in the litigation to date.

[6] The Respondents take the position that there is no point in putting the estate to the proof of the will if it contains no assets. They emphasize the importance of Evelyn’s privacy interests and submit that violating Evelyn’s privacy cannot be justified where the estate is so modest and setting aside the will accomplishes nothing for the Applicants. The Respondents take the position that since the proceeds from the sale of Evelyn’s home are in an account jointly held by Betty Lou, the appropriate claim for the Applicants to advance is for a resulting trust. Further, they argue that Evelyn’s will was never changed (unlike most Seepa cases) and it provides for a “typical” distribution scheme in that those having the same category of relationship get the same gift.

The issue to be decided

[7] The issue to be decided is whether the Applicants have met the minimal evidentiary threshold necessary for demonstrating that they are entitled to an order for document production.

Background

[8] Evelyn died on December 28, 2022.

[9] At the time Evelyn died, she was living in a seniors’ home. For a period before that, beginning when she was 97, Evelyn lived with her daughter Betty Lou and her son-in-law Lee.

[10] The Applicants allege Evelyn was moved into Betty Lou and Lee’s home in June of 2020. Prior to that, Evelyn had lived in her own home in Sillsville, Ontario. This was just down the road from Linda Tibbutt’s house.

[11] The Applicants allege that they had close relationships with Evelyn while she lived in her own home. The Applicants allege that while Evelyn lived with the Respondents, the Respondents isolated Evelyn from the Applicants’ side of the family. In support of this allegation, they say that they were not informed when Evelyn was admitted to a seniors’ home in March 2021 – they learned this through a family friend. They were also not informed when she died. They were not referenced in Evelyn’s obituary, or at her funeral service.

[12] Evelyn’s will was executed about two months after Evelyn moved in with the Respondents, on August 13, 2020. There was no prior will. The will was prepared by Janet. This was about a month after Evelyn had executed documents relating to powers of attorney for property and personal care. These documents were prepared by a lawyer, Mr. Tuckey. Mr. Tuckey had not been Evelyn’s lawyer and it was Betty Lou’s decision to retain him. Betty Lou transported her mother to Mr. Tuckey’s office for this appointment. A will was not drafted at this time.

[13] The will was executed about 10 months after Betty Lou Dorrington posted on Facebook that her mother had dementia. The post was made on October 14, 2019.

The Will

[14] As indicated above, Janet has not participated in this litigation. She has provided no affidavit setting out her account of the circumstances in which she came to be preparing her grandmother’s will.

[15] Betty Lou was asked about these circumstances during questioning. She said the will was taken “off the Internet” by Janet, and that notes and a draft of the will were prepared one or two weeks prior to when it was signed. These notes and records have not been produced and are not in the evidentiary record for the motion.

[16] Betty Lou was asked during cross-examination why she did not ask Mr. Tuckey to prepare a will for her mother when they visited him to set up the powers of attorney. She replied, “[w]e just thought we’d do it ourselves”. She said that the idea of her mother having a will prepared by Mr. Tuckey “never came up” in discussions with him when he was preparing the powers of attorney documents for Evelyn.

[17] As for the contents of the will, it states that the testator has drawn mirror wills with another person. In cross-examination, Betty Lou could not explain what a mirror will, joint will, or mutual will were, even though she was present when Evelyn’s wishes were being discussed, and it was her evidence that the will gave effect to Betty Lou’s wishes.

[18] The will provides that each of Evelyn’s grandchildren shall receive $1000, and her great grandchild shall receive $500. Aside from leaving certain pieces of property to specified individuals, including Linda Tibbutt (who received some dishware), the remainder of the estate is left to Betty Lou.

The proceeds from the sale of Evelyn’s house

[19] Evelyn’s home was sold for $115, 000 on or about July 30th, 2020. This was a private sale. The Applicants say the Respondents facilitated this sale.

[20] According to the Respondents, Evelyn sold her home for about $30,000 less than its appraised value because she was close to the family of the purchaser and wanted him be able to buy the property. The Respondents have no other connection to this family and say that they have not benefited in any way from this transaction.

[21] The proceeds of the sale were placed in a joint bank account held by Evelyn, Betty Lou and Janet. The account had existed since the 1990s. At that time, Evelyn and Betty Lou were joint account holders. Janet was added to the account in or about February 2022.

[22] The joint account now holds all Evelyn’s money, which, in addition to the proceeds of sale from her home, includes her income from CPP and OAS pensions. Neither Betty Lou nor Janet contributed to the funds in the account.

[23] Various withdrawals were made from the account after Janet was added as an account holder. Sums totalling over $10,000 were transferred in February and March 2022. Betty Lou testified these sums were a gift from Evelyn “for looking after her all those years”.

[24] Earlier, on July 18, 2020, a payment of $508 was made to a Trenton lawyer, Aleesha Camp. It is not clear what this was for. Betty Lou testified that it had nothing to do with the will and agreed it was not related to any real estate transaction.

The Facebook post stating Evelyn had dementia

[25] In October of 2019, about 10 months before Evelyn signed the will prepared by her granddaughter, Betty Lou made a post on Facebook stating that her mother had dementia. This was in response to a post by a friend who was posting about her own mother’s dementia. Betty Lou was cross-examined on this issue, and said: “I, friend, you know friend, her mom she had dementia, but hers was – I said, I just said, my mom has dementia, it was just a mild, mild starting of dementia”. When counsel pressed further and asked why she referred to her mother having dementia in this post in October of 2019, she said “I don’t know”.

[26] As I understand her evidence, Betty Lou clarified that Evelyn’s doctor was never actually diagnosed with dementia by her physician, Dr. Hota. Betty Lou recalled attending a doctor’s appointment with her mother in 2020 at some point. During that appointment, while the doctor said Evelyn’s memory was “a little off”, Evelyn had answered questions, including math questions, and she did fine. She could not remember if this appointment was before or after the execution of the will in August of 2020. She also said that her mother’s mental condition improved between the month of the Facebook post (October 2019) and the month the will was signed (August 2020). She suggested this was because her mother had been grieving the loss of her son George in the earlier timeframe.

[27] Counsel for the Respondents suggests that in making this Facebook post, Betty Lou was trying to make her friend feel better. He submits that not much weight should be placed on the Facebook post given Betty Lou’s sworn evidence on the same topic denying Evelyn had dementia.

Additional evidence about Evelyn’s mental condition and treatment by the Respondents

[28] The affidavit of Scott Tibbutt sets out various circumstances that support the Applicants’ position that Evelyn was struggling with her physical and mental abilities at about the time she signed the will prepared by Janet. For instance, he claims that Evelyn: did not recognize games she had played for years; was much less talkative and withdrawn; relied heavily on notes; was forgetful in conversation; and made distressed calls to George on a number of occasions. Scott further states that in the same month that she signed the will, he discovered that Evelyn left the family cottage in the middle of the night, only to be found confused in the woods and suffering incontinence.

[29] Scott also alleges that at various times Betty Lou and Lee made comments to him of a disturbing nature about Evelyn, such as, “she’s not getting teeth”, and “the best thing that could happen is she falls down the stairs”.

[30] The Respondents submit that the concerns outlined in Scott’s affidavit are problematic for various reasons, because they lack context, are vague, are not corroborated, or constitute hearsay.

Evelyn’s relationships with the Applicants

[31] The Respondents submit that the relationship between the Applicants and Evelyn fractured after George died in 2019. The Respondents emphasize that Linda Tibburt’s evidence on the motion seems to suggest that she stopped interacting with Evelyn at that point. They say she has failed to provide a satisfactory explanation for why this occurred. The Respondents also allege that Evelyn’s relationship with Scott was ruptured following an incident in July of 2021 where Scott Tibburt destroyed “by chainsaw” a dock and outhouse on a property where Evelyn leased a cottage. They allege that after this incident, Evelyn never received a visit from any of the Applicants. They did not phone her, nor did they send birthday cards or Christmas greetings.

The legal principles

[32] The law and policy governing will challenges more generally inform the specific issue before the court, and were discussed in Neuberger v. York, 2016 ONCA 191. The broader litigation in this case raises concerns about the validity of Evelyn’s will. In determining whether a will shall be recognized as valid by the grant of probate, the following directions apply:

a. The court’s jurisdiction in probate is inquisitorial because the court’s decision does more than just bind the parties to the dispute. If probate is granted, a will is recognized in rem (or for the whole world). In carrying out its inquisition, the court has a special responsibility to the testator who cannot be present to give voice to his or her true intentions (at para. 68);

b. A person with a financial interest in an estate may ask the court to probate a will. He or she then has the burden to prove that the will was duly signed, that the testator had capacity when he or she signed it, and that the testator had knowledge of the contents of the will and approved them (at para. 77);

c. Upon proof that the testator duly signed a will, the law will assume that the other required facts are proven unless someone opposing probate adduces evidence that, if accepted, would undermine the testator’s knowledge, approval, or capacity. This type of evidence is referred to as “suspicious circumstances” (at para. 77);

d. If suspicious circumstances exist, then the full legal burden reverts to those supporting probate to prove that testator’s knowledge, approval, and capacity. By contrast, those who allege that a will is invalid due to the exercise of undue influence have the burden of proof of that allegation throughout (at para. 78).

[33] In respect of preliminary motions for production of this kind, the following direction from Neuberger at para. 89 assists:

… an 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. In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3).

[34] Seepa v. Seepa, 2017 ONSC 5368 considered the application of this directive in the context of a motion for documentary production. The court held at para. 35 that

[a]t 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 in order to address the specific policy concerns that are discussed above. [emphasis added]

[35] Further relevant principles to the issue before the court include the following:

a. An interested person challenging a will must meet a minimum evidentiary threshold before a will is required to be proven in solemn form before the court: Neuberger at para. 88; Morrish et al. v. Katona et al., 2021 at para. 47;

b. The evidentiary threshold required for obtaining documentary discovery is low. It must be more than the suspicion of the objector: Martin v. Martin, 2018 ONSC 1840 at paras. 33-35 and 37.

[36] Finally, this direction in Seepa assists in assessing the sufficiency of an “answer” to the “minimal evidentiary threshold”:

… the court ought to measure the evidence adduced by the applicant challenger against the evidence answered by the proponent of the will and assess what, if any, processes are required to resolve any conflicts that the court cannot fairly resolve on the record before it. The court will be guided in making directions, as always, by the primary dictate to fashion a process that provides a fair and just resolution of the civil dispute. A fair and just resolution process is one that is developed to meet the goals of efficiency, affordability, and proportionality that underpin all civil cases as directed by the Supreme Court of Canada in Hryniak.

Analysis

[37] I find there are a number of facts on this record that support the Applicants’ position, many of which are beyond dispute.

[38] For instance, Evelyn moved in with Betty Lou and Lee in June of 2020. One month later, in July of 2020, the private sale of Evelyn’s home was negotiated. That same month, Evelyn was taken to an appointment with a lawyer chosen by Betty Lou in order to set up Powers of Attorney. While a will might have been drafted by this lawyer, it was not. Instead, after the meeting with a lawyer, a will was drafted by Betty Lou’s daughter Janet who got a draft will from the Internet. The will was signed by Evelyn just under a month after her meeting with the lawyer on August 13, 2020.

[39] At this point, Evelyn was 97 years old. About 10 months earlier, Betty Lou had said to her friend on Facebook that her mother had dementia. Leaving aside Scott Tibbutt’s evidence about Evelyn’s cognitive and physical issues (and taking the Respondents’ position about the deficiencies in his evidence at its highest), this comment by Betty Lou raises real concerns about Evelyn’s cognitive condition from that point on. I do not accept the argument that Betty Lou’s sworn evidence should be preferred. While counsel submits that Betty Lou made the comment as a way to support her friend, this was not Betty Lou’s evidence on cross-examination - she said she could not explain why she made the comment. I find that this spontaneous comment, made prior to any suggestion of litigation, is compelling evidence on this motion.

[40] Adding to the weight of the Applicants’ position is that the Applicants were not informed when Evelyn passed away. Nor were they referenced in Evelyn’s obituary or funeral service. This evidence is capable of supporting the allegation that Evelyn was being isolated by the Respondents and that the Applicants were shut out of Evelyn’s life and, effectively, her will, as a result of undue influence.

[41] I make no findings concerning the evidence at this stage where the exercise is to simply consider whether sufficient evidence has been presented to warrant the intrusion and expense of document production. In my view, the Applicants have presented evidence which in its totality is sufficient to meet the low threshold required to obtain an order for document production. I find that there is evidence that calls into question Evelyn’s testamentary capacity and evidence that raises concerns with respect to suspicious circumstances and undue influence in the execution of her will. Even considering the evidence adduced by the Respondents in answer to the Applicants’ evidence, I am persuaded that documentary production is required to resolve this conflict. In the context of this case, such an order is part of a fair and just resolution process – it is not an abuse of process by a disgruntled litigant on a fishing expedition.

[42] As for the principles advanced in Hryniak, and the court’s obligation to implement the law to achieve fair and just outcomes through processes that are efficient, affordable, and proportional in light of the circumstances of each case, I accept the argument of the Applicants. In my view, permitting review of these files is more likely to clarify and narrow issues in this litigation and spare expense to the parties as the matter moves forward.

[43] It is by now clear that I also decline to direct the Applicants to pursue a resulting trust claim rather than a challenge of Evelyn’s will because this is an estate of modest value. The parties are both represented by experienced counsel. I trust they will advance the case responsibly, mindful of the costs consequences and the limited pool of money in dispute.

[44] In the result, I am satisfied that the records identified by the Applicants are necessarily obtained in order to fairly and reasonably determine the issues at this stage of the litigation.

Conclusion

[45] For these reasons, the Applicants’ motion is granted.

[46] The court’s conclusion on the motion was communicated to the parties some weeks ago. The terms of the draft order subsequently submitted are reasonable and appropriate and are approved by the court. I thank counsel for their co-operative approach to the issue of costs, which has been resolved.

Lacelle J. Date: January 26, 2024