COURT OF APPEAL FOR ONTARIO

DATE: 20000418

DOCKET: C31579

RE:

DONALD DAVIDSON (Plaintiff/Appellant) and GEORGE
ERIC SINKER, THE LONDON AND MIDDLESEX LUNG
ASSOCIATION, THE KIDNEY FOUNDATION OF CANADA, THE
HEART AND STROKE FOUNDATION OF ONTARIO, THE WAR
AMPUTATIONS OF CANADA, THE GOVERNING COUNCIL OF
THE SALVATION ARMY, CANADA, THE ALZHEIMER SOCIETY
OF CANADA, ST. JOSEPH’S HEALTH CARE FOUNDATION OF
LONDON, PARKWOOD HOSPITAL FOUNDATION, UNIVERSITY
HOSPITAL FOUNDTION OF LONDON, and VICTORIA
HOSPITAL FOUNDATION (known as London Health
Sciences Centre Foundation)
(Defendants/Respondents)

BEFORE: ABELLA, GOUDGE AND MacPHERSON JJ. A.

COUNSEL: C.F. MacKewn
For the appellant

L.F. Farrell
P.J. Puddy
For the respondents

HEARD: April 6, 2000

On appeal from the judgment of Mullen J. dated January 28, 1999,
made at London, Ontario.

E N D O R S E M E N T

[1] The appellant says that the trial judge implicitly found
testamentary capacity and then moved on to find undue influence
but in doing so improperly shifted the burden of proof to the
appellant.

[2] Without commenting on the capacity issue, we are all of the
view that the trial judge came to the right conclusion on the
issue of undue influence.

[3] In our view when the trial judge says that the propounders
of the 1991 will have not met the onus placed on them, he is
saying no more than that where there is substantial evidence of
undue influence, if those alleged to exercise the undue influence
declined to testify to contradict this, they run the risk of the
trial judge concluding that the undue influence has been
established. Indeed the trial judge went on to conclude just
this in this case.

[4] Even if the trial judge could be said to have erred by
shifting the burden of proof to the appellant, it is our view
that the evidence in this case overwhelming points to the
conclusion of undue influence having been exercised on Mr. Malott
by the Davidsons and Dora Smith. The finding of undue influence
was therefore the proper one to make in all the circumstances.

[5] As to the finding of costs below, in our view it was within
the trial judge’s discretion and we would not interfere.

[6] The appeal must therefore be dismissed. In the
circumstances however, all parties are entitled to their cost of
the appeal out of the estate.

“R.S. Abella J.A.”
“S.T. Goudge J.A.”
“J.C. MacPherson J.A.”