COURT OF APPEAL FOR ONTARIO
DATE: 20000419
DOCKET: C27195
COURT OF APPEAL FOR ONTARIO
OSBORNE A.C.J.O., CATZMAN and O'CONNOR JJ.A.
B E T W E E N : )
) Andrew J. MacDonald
MARJANA STEFANOVIC, EXECUTRIX ) for the appellant
OF THE ESTATE OF KATRINA KATA )
KELJANOVIC )
)
Plaintiff/Appellant )
)
- and - ) Debra L. Stephens
) for the respondent
MARIA SANSEVERINO )
)
Defendant/Respondent )
) Heard: May 27 and 28, 1999
)
On appeal from the judgment of Kiteley J. dated April 9, 1997
O’CONNOR J.A.:
[1] Two days before she died, Katrina Keljanovic was persuaded
to execute a transfer of land that changed the way in which she
and her long-time partner, Maria Sanseverino, held title to the
house in which they lived, from a tenancy in common to a joint
tenancy.
[2] As a result, instead of Keljanovic’s interest in the house
passing under her will to her nephew in Yugoslavia, it went to
Sanseverino, the surviving joint tenant.
[3] Marjana Stefanovic, the executrix of Keljanovic’s estate,
applied to have the transfer set aside, alleging that Keljanovic
lacked the necessary capacity to validly execute it and that she
had been unduly influenced by Sanseverino and others to do so.
[4] After a four-day trial, Kiteley J. dismissed the claim.
Stefanovic appeals, arguing that the trial judge’s findings that
Keljanovic had capacity and that she acted free of undue
influence are not supported by the evidence.
[5] For the reasons below I would dismiss the appeal.
Background
[6] I will first set out an overview of the factual background
leading up to the execution of the transfer. I will address the
detailed evidence relating to the two issues, capacity and undue
influence, in the course of my discussion of those issues.
[7] Keljanovic and Sanseverino, then aged 42 and 28 years, met
in 1968. Shortly afterwards, they began living together in an
intimate relationship that continued until Keljanovic’s death on
January 11, 1993.
[8] In 1980 they purchased a house at 10 Winnipeg Road in
Etobicoke, the subject of this litigation, and took title as
joint tenants. Other than when Keljanovic was hospitalized from
time to time during the 18 month period before her death, they
lived together in this house and shared expenses.
[9] In 1987, Keljanovic planned to visit two relatives in her
native country, Yugoslavia. Sanseverino tried to persuade her
not to go, her view being that the relatives took advantage of
Keljanovic and were only interested in her money. Keljanovic
became upset, a disagreement ensued and Keljanovic decided that
the joint tenancy of 10 Winnipeg Road should be severed. She
made arrangements with a lawyer and the two then executed a
transfer of the property to themselves as tenants in common. At
the time Keljanovic said, “what’s mine is mine, what’s yours is
yours.” Although the transfer did not specify, it is accepted
that each owned a one-half interest in the property.
[10] Sanseverino testified that when Keljanovic returned from her
trip, earlier than planned, Keljanovic said that she should not
have gone, that she was fed up with her relatives and that she
would transfer the title of 10 Winnipeg Road back to a joint
tenancy. However, she never did until she executed the disputed
transfer in January 1993.
[11] In the spring of 1991, Keljanovic and Sanseverino tried to
sell the property. The listing agents were the appellant
Stefanovic and Kashmir Handy. The listing expired without a sale
having taken place. Afterwards, both Stefanovic and Handy
maintained a relationship with Keljanovic, visiting her from time
to time, and both played an important role in the events that
gave rise to this action.
[12] In July 1991, Keljanovic was diagnosed with duodenal cancer,
the illness that led to her death in January 1993. Around that
time, on Keljanovic’s urging, Sanseverino gave up her job as a
seamstress in order to actively care for Keljanovic. From then
on Sanseverino did the housework, looked after Keljanovic as her
condition gradually deteriorated and when she was in hospital,
visited her on a daily basis bringing her food, cleaning her up
and making her more comfortable.
[13] In late 1991, Keljanovic transferred a bank account with a
balance of about $62,000, previously in her name only, into an
account at the Bank of Montreal to be held jointly with
Sanseverino.
[14] In July 1992, Sanseverino asked Keljanovic to transfer the
property at 10 Winnipeg Road back to a joint tenancy. Although
there are differences in the evidence as to why Sanseverino made
this request and what exactly was said, it is clear that she
asked Keljanovic to transfer the property and that Keljanovic
refused to do so.
[15] In September 1992, Keljanovic, without telling Sanseverino,
closed the joint bank account at the Bank of Montreal and
transferred the funds into an account in her own name.
[16] In the late summer of 1992, Keljanovic raised the subject of
a will with Stefanovic indicating that she wanted to leave
everything including her one-half interest in 10 Winnipeg Road
and the bank account that was now only in her name to her nephew,
Milutin, who lived in Yugoslavia. She asked Stefanovic not to
tell Sanseverino about her intention, explaining that Sanseverino
wanted to get everything that Keljanovic owned and would be upset
if she knew about the will.
[17] When Stefanovic took Keljanovic to the hospital in November
1992, Keljanovic again raised the subject of a will. Stefanovic
obtained a standard form, filled it out and had Keljanovic sign
it. The will provided that Milutin would receive all of her
assets. On Keljanovic’s request, Stefanovic called a lawyer to
ensure that the execution was proper. A second will was prepared
and executed; the substance was the same. This time, however, on
Keljanovic’s request, Stefanovic was named as executrix. It is
in this capacity that Stefanovic was the plaintiff, and is now
the appellant in this action. After Keljanovic’s death this will
was admitted to probate. Its validity is not in issue.
[18] Keljanovic was discharged from hospital on December 23,
- She returned on December 29 and remained there until her
death on January 11, 1993. At the time of her final admission to
hospital Keljanovic’s cancer had metastasized. She had a high
fever, uncontrolled diabetes and was deeply jaundiced. After
admission she agreed to a treatment approach based on avoiding
pain and suffering. She knew that her condition was not
treatable and she gave a “no CPR” direction which meant that she
did not want to be resuscitated if her heart or breathing
stopped. The prognosis was very poor; there was little chance
she would go home again. Sanseverino was aware of her condition
and knew that she was near death.
[19] On January 6, the doctor discontinued intravenous treatment;
on January 8 he prescribed morphine for pain as necessary. By
this point Keljanovic was very weak; she had been through a great
deal and she wanted to die. On January 9 Keljanovic was using
oxygen some of the time and received morphine at about 12:10
p.m., shortly after she signed the transfer.
[20] During Keljanovic’s different stays in the hospital
Sanseverino visited her on a daily basis. She was very
solicitous and provided emotional and supportive care. In
December 1992 Sanseverino discovered that Keljanovic had closed
the joint bank account and early in January she found that some
of Keljanovic’s jewellery, worth about $15,000, was missing from
the house. When she asked Keljanovic about this on January 7,
Keljanovic told her that she had given this jewellery to a niece,
Mila, Milutin’s sister, who also resided in Yugoslavia.
[21] Sanseverino testified that on January 7 she also raised the
issue of transferring the title to the house back to a joint
tenancy. According to Sanseverino, Keljanovic told her to go to
a lawyer, Mr. Koplovic, to get the papers necessary to effect the
change and to bring those papers to the hospital for her to sign.
The appellant does not accept that Keljanovic asked to have the
transfer prepared and argues that the trial judge made a finding
of fact that she did not. I will come back to this issue later
in these reasons.
[22] In any event, whether on Keljanovic’s suggestion or on her
own initiative, Sanseverino contacted Koplovic, who then prepared
the transfer.1 When she picked it up the next day Koplovic
advised her that a lawyer should be present when it was executed.
Koplovic, whose firm was unable to act, suggested that
Sanseverino call a real estate agent to recommend a lawyer.
Sanseverino contacted Handy, one of the real estate agents
involved in the 1991 listing, who suggested William Samis, a
lawyer who was a friend of Handy’s husband. It was arranged that
Samis, Handy and Sanseverino would meet at the hospital at about
11:30 a.m. on the following day, January 9, in order to have
Keljanovic sign the transfer.
[23] The three met as arranged and went together to Keljanovic’s
hospital room. Keljanovic signed the transfer shortly before
12:10 p.m. The transfer was registered later in January. The
evidence of what occurred in the hospital room between 11:30 a.m.
and 12:10 p.m. on January 9, which I discuss in detail below, is
pivotal to both issues, capacity and undue influence.
Standard of Review
[24] The appellant seeks to set aside the trial judge’s findings
that Keljanovic had testamentary capacity and was not subject to
undue influence when she signed the transfer. These are findings
of fact entitled to deference from this court.
[25] It is well accepted that an appellate court will only
interfere with a finding of fact where a trial judge has made a
clear or manifest error. The requirement that errors be clear or
manifest imposes a deferential standard of reasonableness, not
correctness. This means that an appellate court will not
interfere simply because it disagrees with the finding of fact,
but only if it concludes that the finding is unreasonable:
Bryars Estate. v. The Toronto General Hospital (1997), 152 D.L.R.
(4th) 243 at 252 (Ont. C.A.).
[26] In general terms there are two kinds of errors in the fact
finding process at trial that may warrant interference by an
appellate court.
[27] The first arises when a trial judge makes a finding of fact,
whether on the basis of direct evidence or by inference, that is
not reasonably supported by the evidence. In considering an
appeal alleging an error of this kind, the appellate court
considers all of the evidence relevant to the factual finding in
issue and determines, not whether it agrees with the finding, but
whether there is a reasonable basis for it.
[28] When an appellate court concludes that a finding of fact is
not reasonably supported by the evidence, it remains to be
determined if the error warrants appellate interference. Clearly
many errors do not. The powers of the Court of Appeal are set
out in s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
Once an error has been found the court has the power to make a
fresh assessment of the evidence and if considered appropriate to
substitute the decision that, in its view, should have been made
in the court appealed from (s. 134(1)(a), see also Re Bryars
Estate at p. 253). In other words, the appellate court must
assess the soundness of the conclusions which were based on the
trial judge’s erroneous findings of facts. In making a fresh
assessment of the evidence, the appellate court may draw
inferences of fact but no inference shall be drawn that is
inconsistent with a finding of fact that has not been set aside
(s. 134(4)). In appeals from judgments following trials, the
power to substitute a decision on appeal is exercised with
caution given that a fresh assessment of the evidence will
necessarily be on a written record of the oral evidence given at
trial.
[29] The Court of Appeal also has the power to order a new trial,
however, a new trial may only be ordered when the court is of the
view that a substantial wrong or miscarriage of justice has
occurred (s. 134(6)) which would include, but not be limited to,
a finding that the result of the action in the court below
cannot be sustained without the erroneous finding.
[30] The second kind of error that may warrant appellate
interference is what might be called a “processing error,” that
is an error in processing the evidence that leads to a finding of
fact. This type of error arises when a trial judge fails to
appreciate the evidence relevant to a factual issue, either by
disregarding or misapprehending that evidence. When the
appellate court finds such an error it must first determine the
effect of that error on the trial judge’s reasoning. It may
interfere with the trial judge’s finding if it concludes that the
part of the trial judge’s reasoning process that was tainted by
the error was essential to the challenged finding of fact. In
Schwartz v. Canada2, La Forest J. at p. 281 expressed this point
as follows:
In that sense, the appellate court must, in order to
disturb the trial judge’s findings of fact, come to
the conclusion that the evidence in question and the
error made by the trial judge in disregarding [or
misapprehending] it were overriding and determinative
in the assessment of the balance of probabilities
with respect to the factual issue [brackets my addition].
[31] In addition, when an appellate court determines that the
trial judge has disregarded or misapprehended relevant evidence,
the court may also be justified in interfering with the resulting
finding of fact, regardless of the effect of the error on the
trial judge’s reasoning, if the appellate court concludes that
the finding is not reasonably supported by all of the evidence,
including the disregarded or misapprehended evidence.
[32] In both of the instances set out in the preceding two
paragraphs, however, the test for appellate interference is as I
have discussed in paragraph 28 above.
[33] Finally, I turn to findings of credibility. These are not
findings of fact but rather are part of the process of evaluating
evidence that may lead to a finding of fact. The standard of
review, the reasonableness of the finding of fact, is the same
for findings of fact that are based wholly or in part on findings
of credibility as those that are not. The standard of review for
findings of credibility is also a standard of reasonableness. An
appellate court may and should interfere with a finding of
credibility that it considers unreasonable.
[34] Although credibility based on findings of fact are reviewed
by the same reasonableness standard as other findings of fact,
the appellant faces a more difficult task when the finding of
fact flows from a credibility assessment. Trial judges are in a
much better position to assess credibility, particularly where it
turns on the veracity of the witness. That assessment may be
based quite properly on factors which cannot be reproduced in the
trial record or reviewed on appeal. Consequently, appellate
courts show a wise reluctance to interfere with credibility-based
findings of fact. As a practical matter, a claim that a finding
of fact is unreasonable will be particularly difficult to
substantiate where the finding is based on a trial judge’s
assessment of the credibility of a witness.
[35] When an appellate court is satisfied that an error has been
made in a finding of credibility it then considers the
significance of that error on the resulting finding of fact and
the significance of that finding in the overall context of the
action. Again, the test for interference is as I have discussed
in paragraph 28 above.
Issue 1 - Capacity
[36] Before considering the evidence on the issue of Keljanovic’s
capacity, the trial judge set out the legal principles, correctly
in my view, within which she analyzed the issue. The appellant
does not argue that she erred in this regard. To provide context
for my analysis of the evidence, I will briefly summarize those
principles.
[37] First, the trial judge determined that because the transfer
only had a practical effect when one of the joint tenants died
and the survivor acquired the deceased’s interest in the
property, she should apply the principles applicable to
testamentary dispositions for both issues, capacity and undue
influence.
[38] Next, she found that the circumstances surrounding the
preparation and execution of the transfer raised suspicion
concerning Keljanovic’s capacity. That being the case, she held
that the onus was on the proponent of the transfer, Sanseverino,
to dispel those suspicious circumstances and to prove
testamentary capacity, as is the case with the proponent of a
will: Re Davis, 1963 118 (ON CA), [1963] 2 O.R. 666 (C.A.); and MacGregor v.
Martin Estate, 1965 17 (SCC), [1965] S.C.R. 757.
[39] Finally, she held that the requirement for testamentary
capacity is “a disposing mind and memory,” that being one which
“is able to comprehend of its own initiative and volition, the
central elements of will making .…” In this, she had regard to
the cases of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; and Re
Poirier Estate, 1944 1 (SCC), [1944] S.C.R. 152.
[40] The appellant argues that the trial judge made two errors in
finding Keljanovic had testamentary capacity.
¸ She misapprehended the evidence of two witnesses, Samis
and Handy; and
¸ Her finding of capacity was not reasonably supported by
the evidence, viewed as a whole.
Misapprehension of Evidence
[41] The trial judge reviewed the evidence of Samis in detail.
Samis was in Keljanovic’s hospital room for 5 to 10 minutes
shortly after 11:30 a.m. on January 9. He had not met her before
and did not know that she was dying. He had been told that
Keljanovic had agreed to transfer title to a joint tenancy. His
evidence is not clear as to whether he understood that he was to
ascertain if Keljanovic had the necessary capacity to execute the
transfer or not. To Samis, Keljanovic appeared elderly, weak,
listless and quite sick. He attempted to explain to her the
effect of the transfer to joint tenancy. She did not respond.
It was his impression that she broadly understood what he said
but was disinterested or preoccupied. He concluded that whatever
state she was in, Keljanovic was not going to sign the transfer
that day. He left the room without having conducted any
examination to satisfy himself about her capacity.
[42] The appellant argues that the trial judge erred because she
did not refer, in her reasons, to a comment made by Samis that,
“I don’t think her mental or physical state was such that it
(signing the transfer) was appropriate.” This comment by Samis
was made shortly after he said, “I think she understood what I
said.” At best, for the appellant, these comments read together
are equivocal.
[43] Taken in its entirety Samis’ evidence is of little
assistance to the appellant or to the respondent. Although the
trial judge summarized this evidence in some detail, she attached
little or no weight to it, one way or the other, in concluding
that Keljanovic had the required capacity to execute the
transfer. I see no error in the way that the trial judge dealt
with Samis’ evidence.
[44] Next, the appellant argues that the trial judge
misapprehended the evidence of Handy, which was central to the
trial judge’s finding on this issue. Handy had known Keljanovic
since the spring of 1991 and had visited her periodically,
including on occasions when she was in hospital. Before going to
Keljanovic’s hospital room with Samis and Sanseverino on January
9, Handy had been told by Sanseverino that Keljanovic had
requested that the transfer be prepared and brought to the
hospital for signing. Handy testified that after being in the
room for a short period of time with Sanseverino and Samis she
asked them to leave, deliberately taking it on herself to
persuade Keljanovic to sign the transfer. Handy described her
conversation with Keljanovic in some detail. On the basis of
this evidence it is reasonable to conclude, as the trial judge
did, that Keljanovic knew what her assets were, that she had made
a will disposing of those assets, that Sanseverino was not named
as a beneficiary of her estate, that Sanseverino did not know
about the will, that Mira (the appellant Stefanovic) had the
will, and that the transfer of 10 Winnipeg Road would have an
impact on the effect of the will that would change what her
nephew Milutin would otherwise receive.
[45] Handy expressed the opinion that Keljanovic “was all there”
and that “she knew what was going on for sure.” She said that
although Keljanovic was sick she was not disoriented. Handy
believed that Keljanovic understood the significance and effect
of the transfer. The appellant argues that this evidence was
qualified because on one occasion Handy said that she hoped that
Keljanovic understood the nature of the transfer. The use of
this phrase must be read in the context of all of Handy’s
evidence; the clear message from that evidence was that Handy
believed that Keljanovic understood what she was doing.
[46] I see nothing in the trial judge’s reasons setting out the
basis on which she found that Keljanovic had the required
capacity to indicate that she misapprehended or unfairly
considered the effect of Handy’s evidence. I would not interfere
with her finding of capacity on this basis.
Reasonableness of Finding – Capacity
[47] As I point out above, the trial judge properly determined
that the onus to prove capacity was on the proponent of the
transfer, Sanseverino. The trial judge concluded that it was
established that Keljanovic had “a disposing mind and memory” and
that although her mind was “in some degree debilitated …, she had
the capacity to make a rational, fair and just disposition.”
[48] The appellant argues that the trial judge erred in reaching
this conclusion in that she only considered Handy’s evidence and
not the other evidence relevant to the issue. This is another
way of saying that the trial judge’s finding is not reasonably
supported by all of the evidence.
[49] In addition to Handy and Samis, counsel referred the court
to the evidence of four other witness on this issue: Sanseverino,
Stefanovic, Dr. Lee and Dr. Wilson.
[50] Not surprisingly, Sanseverino’s evidence strongly supported
her position that Keljanovic fully understood the nature of the
transfer and that she made the decision to execute it of her own
volition. The trial judge, however, had serious concerns about
the credibility of this evidence and chose to disregard it,
unless corroborated. As a result, in determining whether the
trial judge’s finding is reasonably supported by the evidence, I
do not attach any weight to Sanseverino’s evidence.
[51] Stefanovic testified that in November 1992, Keljanovic was
alert and clearly understood what she was doing when she executed
the will leaving all of her assets to her nephew Milutin. Her
evidence, however, did not address the issue of capacity in the
critical period leading up to the execution of the transfer on
January 9. Again, this evidence does not weigh in the balance.
[52] Dr. Lee, a specialist in gastroenterology, was Keljanovic’s
admitting physician during the November 1992 admission to
hospital and saw her almost daily. However, during her last
admission to hospital he saw her just three times and spoke to
her only about superficial things. He did not do a mental status
examination. When asked, he was not able to say if she could
fully understand legal documents on January 9. Dr. Lee’s
evidence also adds little to the scales, one way or the other.
[53] The strongest evidence supporting the position that
Keljanovic lacked capacity was that of Dr. Wilson. He was a
specialist in hematology and internal medicine and was the doctor
responsible for Keljanovic’s care during her last admission to
hospital, beginning on December 29, 1992. In addition to her
seriously weakened condition, which I have described above, Dr.
Wilson testified that she experienced hypoglycemia which could
interfere with her thinking. Dr. Wilson did not believe that
Keljanovic had the physical or mental capacity on January 9, to
make an informed decision about the nature and consequences of
signing a legal document. He said that it was his experience with
patients in Keljanovic’s condition that one may think he or she
is having a meaningful discussion, only to realize the next day
that the patient did not take it all in. At this stage of an
illness, he said there are gaps in comprehension.
[54] Dr. Wilson attached a caveat to his opinion; he had not done
a mental status examination. Further, like Dr. Lee, his
conversations with Keljanovic had been superficial, largely
relating to her symptoms.
[55] Dr. Wilson’s opinion is strong evidence deserving of serious
consideration. However, I agree with the trial judge that Dr.
Wilson’s evidence is not determinative. He had not conducted a
mental status examination and his conversations with Keljanovic
were superficial. It is important to consider Dr. Wilson’s
evidence within the larger context of all of the evidence, in
particular that of Handy.
[56] The trial judge accepted Handy’s evidence. Implicitly she
found Handy to be a credible witness. Her evidence was
internally consistent, relatively straightforward and unshaken on
cross-examination. There was nothing to suggest partiality or
oblique motive. There is no basis to interfere with this finding
of credibility.
[57] Handy’s evidence dealt directly with the specific issue,
that is Keljanovic’s capacity to understand the implications of
the transfer. That evidence was detailed and to the point.
Handy expressed the opinion that Keljanovic understood the effect
of the transfer and gave her reasons for this opinion. It was
open to the trial judge to accept this evidence in preference to
that of Dr. Wilson. I do not agree with the appellant that in
doing so she misapplied the court’s decision in Re Price, [1946]
O.W.N. 80, as that case stands for the proposition that a
judgment as to testamentary capacity is a practical question
which may be answered by a layman of good sense with as much
authority as by a doctor.
[58] The trial judge was alert to the suspicious circumstances
that called Keljanovic’s capacity into question. After carefully
considering all the evidence, the trial judge concluded that the
proponent, Sanseverino, had established the required capacity.
This was not an unreasonable finding. There was credible
evidence, accepted by the trial judge, to support it. I
therefore see no basis to interfere with this finding.
Issue 2 - Undue Influence
[59] This is the more difficult issue. The trial judge found
that Keljanovic’s free will was not overborne by acts of coercion
or fraud and that she was not subject to undue influence when she
executed the transfer.
[60] The appellant does not take issue with the legal principles
relied upon by the trial judge in reaching this finding. The
appellant’s submissions come down to a single point: the finding
is not reasonably supported by the evidence, viewed as a whole.
[61] In considering what constitutes undue influence the trial
judge relied on a lengthy passage from Hall v. Hall (1868), L.R.
1 P. & D. 481 at 482, the nub of which described undue influence
as “… pressure, of whatever character, whether acting on the
fears or the hopes, if so exerted as to overpower the volition
without convincing the judgment… .” And further on, “Importunity
or threats … if carried to a degree in which the free play of the
testator’s judgment, discretion, or wishes is overborne, will
constitute undue influence, though no force is either used or
threatened.”
[62] Except where there is a relationship of influence by a donee
over a donor of a voluntary gift, the person alleging undue
influence has the onus of proof. Suspicious circumstances
surrounding the execution of a testamentary interest do not shift
the onus to the proponent of the instrument to disprove undue
influence: Vout v. Hay, 1995 105 (SCC), [1995] 2 S.C.R. 876.
[63] In cases of voluntary gifts the presumption of undue
influence will arise if the relationship between the donor and
donee was such as to raise a presumption that the donee had
influence, the ability to dominate the will, over the donor. If
the presumption arises, the burden shifts to the donee to rebut
the presumption. This can be done by showing that there was no
actual undue influence, that the donor received independent
advice, and so on: Geffen v. Goodman Estate, 1991 69 (SCC), [1991] 2 S.C.R. 353.
[64] The trial judge did not apply this presumption. She found
that Keljanovic signed the transfer because of Handy’s
persuasion, not because of Sanseverino’s efforts. Indeed,
Sanseverino’s efforts were unsuccessful. She found that Handy
received no benefit for her role and that she was not acting as
Sanseverino’s agent. She described Handy as a volunteer. These
findings, which are supported by the evidence, establish that the
circumstances in this case were not such as to trigger the
application of the presumption of undue influence. Even if the
presumption did apply, the trial judge’s finding that there was
no actual undue influence, which I discuss below, would provide
an evidentiary basis to rebut it.
[65] The central facts on this issue are not in dispute. The
question is whether the efforts that led Keljanovic to execute
the transfer amounted to persuasion that appealed to her sense of
fairness (i.e., doing the right thing for Sanseverino), or
whether those efforts crossed the line and constituted coercion
that overbore her judgment, wishes or volition. There was
undoubtedly influence. The question is, was it undue.
[66] Until immediately before she signed the transfer, Keljanovic
was clearly of the mind to leave her one-half interest in 10
Winnipeg Road to her nephew Milutin and not to Sanseverino. In
1987 the title to the property, previously held by the two as
joint tenants, was transferred to a tenancy in common. When
Sanseverino tried to talk to Keljanovic about re-transferring
this property to a joint tenancy in 1992, she was rebuffed. In
1992, Keljanovic transferred $62,000 held in the joint account to
a new account opened in her own name. She did not advise
Sanseverino of this transfer. In November 1992, Keljanovic
prepared a will excluding Sanseverino, again keeping this
information from her.
[67] When Sanseverino, Handy and Samis went to Keljanovic’s
hospital room on January 9, Samis attempted to explain the nature
of the transfer to Keljanovic. While in the room with the others
Sanseverino told Keljanovic how important it was that she sign,
that she should think of what would happen to Sanseverino if she
did not sign and that she, Keljanovic, had promised to sign the
transfer. Sanseverino was very emotional, upset and crying.
[68] Keljanovic did not respond to Samis or Sanseverino. She
turned her head away. Samis said that Keljanovic was
disinterested and preoccupied with other matters. He concluded
that she would not be signing anything that day. It was then
that Handy asked Sanseverino and Samis to leave the room,
deliberately taking it on herself to persuade Keljanovic to sign
the transfer. She was alone with Keljanovic until the transfer
was signed except for periodic interruptions by Sanseverino, who
came into the room, disrupted their conversation, berated
Keljanovic and continued her pleas that Keljanovic sign the
transfer.
[69] When alone, Handy attempted to persuade Keljanovic to sign
on the basis that it was the fair thing to do. She pointed out
that the two had spent many years together, that Sanseverino had
done a great deal for her including looking after her while she
was sick, and that Sanseverino, who was then 55 years old, was
without a job. She expressed concern as to what would happen to
Sanseverino if Milutin, the nephew, decided to sell the house.
There is no question that Handy did her best to persuade
Keljanovic that the fair and proper thing to do was to execute
the transfer.
[70] Handy testified that after some time, Keljanovic closed her
eyes. She was “kind of thinking,” she was quiet, shed some tears
and then agreed to sign and let out a loud sigh.
[71] Handy said that she did not believe she had forced
Keljanovic to sign the transfer. Rather, Handy encouraged her,
wanting her to realize that leaving her interest in the house to
Milutin was not fair to Sanseverino. In the end, Handy was sure
that Keljanovic realized this. The appellant attaches
significance to a comment made by Handy that she hoped she did
not force Keljanovic to sign the transfer. She used the same
expression in describing her belief that Keljanovic understood
what she was signing. This comment, viewed in the context of all
of her evidence, appears to be a form of speech rather than an
expression of doubt about her belief. Clearly, it was Handy’s
view that she persuaded but did not force or coerce Keljanovic to
sign.
[72] The appellant argues that Handy’s efforts to persuade
Keljanovic were flawed because she relied on inaccurate or
incomplete information in attempting to convince Keljanovic to
sign. In this regard the appellant raises three points.
[73] First, it is argued that Handy misled Keljanovic by
suggesting that if she did not execute the transfer, the
government would take everything, meaning all of her property.
This suggestion was, of course, incorrect. However, Keljanovic
responded to it by saying that she had a will which Mira
(Stefanovic, her executrix) had and which Sanseverino did not
know about. This response, which addressed the concern about the
government, dispels the notion that Keljanovic was misled into
executing the transfer in order to avoid the property going to
the government. It is also cogent evidence to show that
Keljanovic did not simply agree with anything that Handy said and
that she focused on and understood the conversation with Handy.
[74] Next, the appellant argues that Handy had been misled by
Sanseverino into believing that Keljanovic asked to have the
transfer to joint tenancy prepared. Sanseverino testified that
Keljanovic had made this request on January 7.
[75] It is clear that Sanseverino told Handy that shortly before
January 9 Keljanovic had asked Sanseverino to have the transfer
to joint tenancy prepared by a lawyer and brought to the
hospital. The lawyer who prepared the transfer, Koplovic, was
not called as a witness by Sanseverino and the trial judge drew a
negative inference against Sanseverino from this failure.
[76] In the course of her conversation with Keljanovic, Handy
mentioned that she, Keljanovic, had asked to have a lawyer
prepare the transfer. Handy testified that Keljanovic “sort of
indicated that she did, but she didn’t say yes or no.” Later in
her evidence Handy said that she believed Keljanovic knew what
Samis had explained about the transfer because Keljanovic had
mentioned that she was expecting Koplovic and that she knew she
had asked Sanseverino to get Koplovic to prepare the transfer.
She said that Keljanovic was aware of what was going on.
[77] The trial judge did not make a specific finding about
whether the earlier conversation in which Keljanovic allegedly
asked Sanseverino to have the transfer prepared had occurred or
not. The appellant argues that because the trial judge
determined not to act on any evidence of Sanseverino, unless
corroborated, this court should proceed on the basis that
Keljanovic had not asked that the transfer be prepared. It seems
to me that there is some corroboration in Handy’s evidence of her
conversation with Keljanovic to support the evidence of
Sanseverino. Even assuming, however, that Sanseverino misled
Handy, it does not appear to have made a difference in
Keljanovic’s decision to execute the transfer. Handy’s evidence
was that she attempted to persuade her that it was the fair thing
to do because of Sanseverino’s past care and her future
prospects. There is nothing in Handy’s evidence to suggest that
the comment that Keljanovic had asked her to have the transfer
prepared influenced her to sign. To the contrary, Handy
testified that she was sure Keljanovic agreed to sign because she
realized that maybe she was not being fair to Sanseverino.
[78] Finally, the appellant argues that Handy’s efforts to
persuade Keljanovic are questionable because she did not know all
of the facts that should have properly weighed into a
determination whether Keljanovic was being fair to Sanseverino.
She did not know that Keljanovic was dying, nor did she know
about Sanseverino’s financial circumstances, in particular that
Sanseverino had approximately $40,000 in a bank account.
[79] The trial judge found that, had Handy known of the $40,000,
she would still have considered the transfer to be the fair thing
to do. The important point, however, is not what Handy believed
but that in attempting to persuade Keljanovic she did not mislead
Keljanovic about the specifics of Sanseverino’s financial
circumstances. She spoke in general terms about what was fair
and about her concern for Sanseverino’s future.
[80] In my view, there is no basis to conclude that Handy misled
Keljanovic in the course of her efforts to persuade her to sign
the transfer.
[81] The issue of undue influence turns largely on the
conversation between Handy and Keljanovic when the two were alone
in the hospital room. The trial judge found, correctly in my
view, that the persuasion to sign came from Handy, not from
Sanseverino.
[82] An assessment of Handy’s efforts must be made against the
background that Keljanovic had decided, some time previously, to
leave the one-half interest under the will to her nephew and to
keep this fact from Sanseverino. On January 9 she was weak and
suffering from the final stages of her illness. She had resisted
the emotional pleas of Sanseverino. It was only during the
course of the conversation with Handy that she changed her mind.
A sudden change of mind by a weakened person is cogent evidence
of undue influence: Cartmill v. Pettman, [1994] O.J. No. 326
(QL) (Gen. Div.).
[83] Weighed against this is the uncontradicted evidence that
Keljanovic was strong willed, well educated and not subject to
being pushed around. She was clearly the dominant personality in
the relationship with Sanseverino. Furthermore, she had the
capacity to understand the consequences of the transfer. This is
important. Although undue influence raises a different issue
than lack of capacity, “[i]f it is established that the testator
knew and appreciated what he was doing, in many cases there is
little room for a finding that the testator was coerced”: Vout
v. Hay, supra at 890.
[84] Handy testified that Keljanovic was not forced. She
believed that Keljanovic realized that executing the transfer was
the fair thing to do. This was not an unreasonable proposition.
Looked at objectively, there is a good argument that it was the
fair thing to do for the very reasons urged on Keljanovic by
Handy. The two had cohabited for many years and they had shared
much together. Sanseverino had cared for her under trying
circumstances. Although the test is undue influence and not
fairness, the fairness and reasonableness of the influence is
surely relevant in determining whether or not it was undue.
[85] The question comes down to whether the finding of the trial
judge is one that is reasonably supported by the evidence. This
is not an easy case. The trial judge was alive to the difficulty
inherent in the facts of this case. She considered the factors
summarized in Cartmill v. Pettman relevant to whether Keljanovic
has been subjected to undue influence, including her debilitated
physical condition and her sudden change of mind. The trial
judge very carefully considered all of the evidence and concluded
that Keljanovic was led but not driven to execute the transfer,
that her free will was not overborne by acts of coercion or
fraud.
[86] In my view, this finding was open to the trial judge. There
was evidence, found to be credible, that reasonably supported it.
Accordingly, I would not interfere with the finding that
Keljanovic was not subject to undue influence when she executed
the transfer.
DISPOSITION
[87] In view of the above, it is not necessary to address the
issue of donatio mortis causa.
[88] I would dismiss the appeal with costs to the respondent to
be paid from the estate.
Released: “CAO” “19 Apr/00”
“Dennis O’Connor J.A.”
“I agree: M.A. Catzman J.A.”
OSBORNE A.C.J.O. (dissenting):
[89] I have reviewed the draft reasons of O’Connor J.A. I agree
with my colleague’s analysis on the issue of capacity. I cannot,
however, agree with his conclusion on the issue of undue
influence. For the reasons that follow, I think that
Ms. Keljanovic’s signature on the transfer of the Winnipeg Road
property was procured by actual undue influence.
[90] The evidence was fully and fairly reviewed by the trial
judge and has been referred to extensively and fairly in my
colleague’s reasons. I propose, therefore, to limit my review of
the evidence to that part of it which is relevant to the issue
whether Ms. Keljanovic’s signature was procured by undue
influence. In doing so, I will refer to some of the evidence
going to the issue of Ms. Keljanovic’s capacity on January 9,
1993, the day on which the transfer in question was signed.
These references are necessary because Ms. Keljanovic’s
diminished capacity, in my view, made her more susceptible to
influence.
[91] The Winnipeg Road property in which Ms. Keljanovic and Ms.
Sanseverino lived was purchased in 1980. Title was taken in
their names as joint tenants. In 1987, Ms. Keljanovic severed
the joint tenancy. She told Ms. Sanseverino that “what’s mine is
mine and what’s yours is yours.”
[92] From 1987 to January 9, 1993, Ms. Keljanovic and Ms.
Sanseverino held title to the Winnipeg Road home as tenants in
common. Manifestly, from 1987 to January 9th, Ms. Keljanovic did
not want her interest in the Winnipeg Road property to go to Ms.
Sanseverino, as a surviving joint tenant, in the event of Ms.
Keljanovic’s death. It was on January 9, 1993, two days before
her death that Ms. Keljanovic executed a transfer of the title to
the Winnipeg Road property to a joint tenancy. Thus, when Ms.
Keljanovic died on January 11, 1993, Ms. Sanseverino became the
owner of the property instead of the beneficiary to whom Ms.
Keljanovic had left the property in her will.
[93] In 1991, Ms. Keljanovic became ill and a medical examination
established that she had cancer. In 1992, Ms. Sanseverino asked
Ms. Keljanovic to transfer title to Winnipeg Road back into joint
tenancy. Ms. Keljanovic refused to do so.
[94] In September 1992, Ms. Keljanovic transferred the balance in
a joint account (Ms. Keljanovic and Ms. Sanseverino were the
joint owners of the account) to a new account in her own name.
Ms. Sanseverino had no control over this account. Ms. Keljanovic
asked her friend, Ms. Stefanovic, not to tell Ms. Sanseverino
about this.
[95] In 1992, Mr. Keljanovic told Ms. Stefanovic, her friend and
the executrix of her will, that she wanted to have a will
prepared. She gave Ms. Stefanovic a copy of the deed to the
Winnipeg Road property and a bank statement for the account to
which I have referred earlier. Ms. Stefanovic testified that Ms.
Keljanovic asked her not to tell Ms. Sanseverino about the will
because Ms. Keljanovic thought that Ms. Sanseverino wanted to
inherit all of her property and would, therefore, be upset if she
learned that she would not inherit all of Ms. Keljanovic’s
estate. On November 16, 1992, Ms. Keljanovic signed her will.
Her will provided that her interest in the Winnipeg Road property
and her possessions go to her nephew Milutin. This will was
probated on July 22, 1994.
[96] By the fall of 1992, Ms. Keljanovic’s cancer had spread.
She accepted that there was no medical treatment that could
resolve her many medical problems. She went to the hospital
emergency department on November 12, 1992 because of severe
bleeding. She was discharged on November 13, 1992 but had to
return to the hospital on November 14, 1992. She was discharged
on December 23, 1992 but was re-admitted on December 29, 1992.
She remained in the hospital from December 29th until her death
on January 11, 1993.
[97] Dr. Wilson, who was familiar with Ms. Keljanovic’s case and
circumstances, testified extensively as to Ms. Keljanovic’s
condition in November and December 1992 and in January 1993. He
stated that Ms. Keljanovic had progressive inoperative wide-
spread cancer that had originated in her upper bowel. He
testified that Ms. Keljanovic appeared to be tired, fatigued and
chronically ill. He described her appearance as “yellow.” At
that time Ms. Keljanovic was a diabetic. This condition surfaced
following her surgery in 1991 during which her pancreas was
removed.
[98] In addition to her problems directly related to her cancer,
Ms. Keljanovic had a bacterial infection. Dr. Wilson referred to
this infection as being particularly strong and the frequent
cause of death in cancer patients.
[99] Dr. Wilson prescribed a tranquilizer, Atavan, at the time of
Ms. Keljanovic’s hospital admission on December 29th. He stated
that Atavan can lead to forgetfulness in that it could affect the
patient’s ability to think. He also said that patients in
Ms. Keljanovic’s circumstances may appear to understand, without
actually comprehending:
… it would be very likely that she would be
confused given the fact that she had an
infection, her blood sugar was high.
… in my experience unfortunately in
patients at this stage of their illness is
that you think you are having a meaningful
discussion with them, and at times I spent
quite lengthy discussions with many patients
and the following day it is very clear to me
that they have not taken anything in. So a
patient who is sick and with other medical
problems they can make eye contact, they make
appropriate responses, but it is generally my
– if it was a meaningful discussion I would
want to have it with another family member
present because I think more times than not
patients, they don’t have any recollection. …
I am not sure what the mechanism is but it’s
a common observation that you think you are
having a meaningful discussion and it’s very
clear that there are several gaps in
understanding or just completely forget.
[100] On December 30, 1992, Dr. Wilson prescribed a second
antibiotic, Cipro to replace an earlier prescribed antibiotic
which Dr. Wilson said was ineffective against the particular
infection that Ms. Keljanovic had. Dr. Wilson said Cipro can
have a number of “drug interactions” and could cause confusion
and seizures. Ms. Keljanovic was also taking Gravol which Dr.
Wilson said could cause sedation.
[101] By January 8, 1993, Ms. Keljanovic’s condition was
deteriorating rapidly. Since she was incontinent, Dr. Wilson
asked the nursing staff to insert a full catheter so that he
could avoid the risk of Ms. Keljanovic suffering from bed sores.
He wanted to limit active treatment at that time because it was
obvious that only palliative care made sense. Thus, on January
8th he reduced the antibiotics that Ms. Keljanovic was receiving
and, to alleviate her suffering, he prescribed morphine on an as-
needed basis. Dr. Wilson testified:
I did not order morphine on a regular basis and the reason
for that is that I felt clinically that her condition was
clearly failing; I put a notation on her chart that in
spite of our best efforts, we were not able to improve her,
and what I was looking for, maybe I should, I was looking
for her to improve what we call a performance test … Her
ability to manage … if I could by treating her infection
or treating her bleeding, …
[102] Dr. Wilson described morphine as a powerful narcotic
analgesic. He said that for someone who is not used to taking it
morphine can put them to sleep. He added that morphine “…
certainly interferes with their ability to communicate well and
to understand.”
[103] Dr. Wilson saw Ms. Keljanovic on the morning of January
9, 1993. He found her to be weak and deeply jaundiced. He
recognized that the final days of her illness were approaching.
At that point he added a third drug Haldol which he prescribed on
an as-need-basis. Haldol is a major tranquilizer which Dr.
Wilson prescribed because in his experience patients in the
latter stages of a terminal illness can become paranoid and quite
agitated. He also renewed the morphine prescription during the
morning of January 9th.
[104] When Dr. Wilson was asked about Ms. Keljanovic’s
ability to comprehend on January 9, 1993, he said, “In my opinion
it would certainly be questionable.” The reference with respect
to comprehension was to the significance of legal documents.
When specifically asked about Ms. Keljanovic’s capacity to make
an informed decision as to the nature and consequences of signing
a “legal document,” on January 9, 1993, Dr. Wilson said, “I do
not believe she would.”
[105] Dr. Lee, a gastroentorologist, also saw Ms. Keljanovic
frequently when she was in the hospital. He described her as
“strong-willed and stoic.” He said that she was “surprisingly
coherent on January 9th.” However, he added that patients in
Ms. Keljanovic’s circumstances can appear to understand, but not
understand, what is going on around them. In the end, he
professed to be unable to say whether or not Ms. Keljanovic could
understand legal documents on January 9th, when the transfer in
question was signed.
Capacity
[106] When she dealt with the capacity issue, the trial judge
accepted the evidence of Kashmir Handy, a former real estate
agent who was in Ms. Keljanovic’s room on January 9, 1993 when
she signed the transfer. Ms. Handy testified that Ms. Keljanovic
did understand what she was doing and that she was thus capable
of signing the transfer on January 9th. The trial judge viewed
the evidence of Drs. Wilson and Lee which cast some doubt on Ms.
Keljanovic’s capacity as not being “determinative.”
[107] I accept, as my colleague O’Connor J.A. did, that it
was open to the trial judge to accept Ms. Handy’s evidence on the
capacity issue. However, in my view, it would have been better
had the trial judge filtered Ms. Handy’s opinion evidence as to
Ms. Keljanovic’s capacity through the evidence of Drs. Wilson and
Lee. Both testified that Ms. Keljanovic might have appeared to
understand, in circumstances where she did not in fact
understand. Thus, the issue of the reliability of Ms. Handy’s
evidence, as opposed to its credibility, should, in my opinion,
have been considered in light of the uncontradicted medical
evidence. Nonetheless, since the trial judge fully reviewed the
evidence of Drs. Wilson and Lee it cannot be said that she
misapprehended their evidence, or that she failed to take account
of their evidence. Thus, I am not prepared to disagree with
O’Connor J.A.’s conclusion that there is no basis upon which to
interfere with the trial judge’s finding on the capacity issue.
However, as I have said, I do not agree with my colleague’s views
on the undue influence issue.
Undue Influence
[108] On January 8, 1993, a solicitor, Mr. Kolopovic,
prepared a transfer of the Winnipeg Road property from Ms.
Keljanovic and Ms. Sanseverino as tenants-in-common to Ms.
Keljanovic and Ms. Sanseverino as joint tenants. Obviously, from
Ms. Sanseverino’s standpoint, the idea was that she would acquire
title to the Winnipeg Road property, as a surviving joint tenant,
in the event of Ms. Keljanovic’s then expected death, provided,
of course, that the transfer in question was duly signed. Getting
Ms. Keljanovic to sign the transfer was, therefore, a matter of
some urgency.
[109] The evidence is not clear as to precisely who asked Mr.
Kolopovic to prepare the transfer. It is, however, apparent that
Mr. Kolopovic regarded Ms. Sanseverino as his principal client
since he subsequently submitted a bill for $200 to her for his
work. Part of the obscurity on this aspect of the case results
from the fact that Mr. Kolopovic did not give evidence. The
trial judge drew an inference adverse to Ms. Sanseverino as a
consequence of her failure to call Mr. Kolopovic. I take it that
the inference was that Mr. Kolopivic’s evidence would not have
been of assistance to Ms. Sanseverino’s case.
[110] Mr. Kolopovic told Ms. Sanseverino that he could not go
to the hospital to participate in securing Ms. Keljanovic’s
signature on the transfer of the Winnipeg Road property to a
joint tenancy. He advised Ms. Sanseverino to contact her friend,
Kashmir Handy, a real estate agent, to find another lawyer to go
to the hospital as a witness.
[111] Ms. Handy, at the suggestion of her husband, contacted
a lawyer, William Samis. He agreed to go to the hospital with
Ms. Handy and Ms. Sanseverino on Saturday, January 9, 1993.
Ms. Sanseverino, Ms. Handy, Mr. Samis and Ms. Stefanovic met in
the lobby of the hospital at about 11:30 a.m. on January 9th.
They then went to Ms. Keljanovic’s hospital room.
[112] Mr. Samis thought that the transfer from tenancy-in-
common to joint tenancy was being effected with Ms. Keljanovic’s
consent. Thus, he appears to have thought that all that he was
required to do was to ensure that Ms. Keljanovic understood what
the transfer was all about. He testified that did not think that
he was there to provide independent legal advice or to confirm
Ms. Keljanovic’s capacity. He did not know that Ms. Keljanovic
had cancer, that she was dying or that she had a will in which
she left her interest in the Winnipeg Road property to her nephew
Milutin. Nor did he know, or ask, what medication Ms. Keljanovic
was taking. Mr. Samis billed Ms. Sanseverino $350.00 for his time
in going to the hospital and for some legal research, because, as
the trial judge put it, he thought Ms. Sanseverino was
“predominantly” his client.
[113] Mr. Samis described Ms. Keljanovic as being an elderly,
weak, listless woman when he saw her for the first time on
January 9th. He testified that Ms. Keljanovic turned away and
did not respond when he explained the effect of the transfer to
her. At this point, according to Mr. Samis, Ms. Keljanovic
appeared to be disinterested and preoccupied with other matters.
[114] When Ms. Keljanovic did not respond to his attempted
explanation or the transfer, Mr. Samis took it that she did not
want to sign. He, therefore, decided to withdraw. He said:
… Ms. Keljanovic was not responding generally
to what I was saying and there didn’t seem to
be a point in belabouring it beyond a certain
level.” (p. 328)
…
My recollection is that while I was
explaining the purport of it [the transfer],
it became clear that she was – and I don’t
know how to put it – she was either
disinterested and/or preoccupied with other
matters; she didn’t seem to show any
particular interest in what I was saying … I
think she understood what I was saying but I
didn’t get any particular direct response
from her one way or the other with respect to
it. … I decided there was no purpose being
served by me being there because she was not
likely to be signing it in my presence and if
she did I don’t think at that point I don’t
think that her mental and physical state was
such that it was appropriate. (p. 335)
[115] Mr. Samis testified that while he was in Ms.
Keljanovic’s hospital room both Ms. Sanseverino and Ms. Handy
attempted to persuade to Ms. Keljanovic to sign the transfer.
They emphasized that she had promised to do so. He added that
either Ms. Sanseverino or Ms. Handy asked Ms. Keljanovic to take
account of what would happen to Ms. Sanseverino in the event of
Ms. Keljanovic’s death if Ms. Keljanovic did not sign the
transfer. Mr. Samis referred to their attempts to obtain Ms.
Keljanovic’s signature on the transfer as attempts “to convince,”
not acts of coercion.
[116] Before Mr. Samis left Ms. Keljanovic’s hospital room he
told Ms. Handy and Ms. Sanseverino that if Ms. Keljanovic changed
her mind about signing the transfer there was no need for a
lawyer to be present as a witness, provided that someone could
attest to her capacity.
[117] Ms. Handy, whose evidence the trial judge accepted,
generally confirmed Mr. Samis’ evidence about events in the
hospital room while Mr. Samis was there.
[118] After Mr. Samis left, Ms. Handy and Ms. Sanseverino
were alone with Ms. Keljanovic. The trial judge found that Ms.
Sanseverino, “virtually berated” Ms. Keljanovic to sign the
transfer at that time. Her efforts were unsuccessful, so
Ms. Handy appears to have decided that she would take over. She
recognized that Ms. Sanseverino’s emotional protestations were
upsetting Ms. Keljanovic. Thus, at Ms. Handy’s suggestion,
Ms. Sanseverino left the room and Ms. Handy attempted to persuade
Ms. Keljanovic to sign the transfer.
[119] Ms. Handy emphasized the long term relationship that
Ms. Keljanovic had with Ms. Sanseverino. She pointed out that if
the Winnipeg Road property were sold after Ms. Keljanovic’s death
Ms. Sanseverino would have no where to live. She reminded Ms.
Keljanovic that Ms. Sanseverino was 55, had no job and that she
had looked after Ms. Keljanovic over the years. She also told
Ms. Keljanovic that if she died without a will the government
would take everything and Ms. Sanseverino would get nothing. In
response to that observation, which was clearly wrong, Ms.
Keljanovic stated that she had a will and as a result the
government would not be involved in her estate.
[120] Ms. Handy asked Ms. Keljanovic if Ms. Sanseverino had
done something to offend her. Ms. Keljanovic responded that she
had not. Ms. Handy also asked Ms. Keljanovic if she had left her
interest in the property to Ms. Sanseverino in her will. Ms.
Keljanovic replied by saying that she had to leave something to
her nephew Milutin. When Ms. Handy then suggested that Ms.
Keljanovic leave the Winnipeg Road property to Ms. Sanseverino
and everything else to Milutin, Ms. Keljanovic became upset and
teary. She then said that she would sign the transfer. At that
point Ms. Handy reassured her that she was doing the right thing.
[121] When she dealt with the issue of undue influence, the
trial judge stated: “if Kata [Ms. Keljanovic] had signed the
transfer without the intervention of Kash [Ms. Handy] the outcome
would be different.” I take it that the trial judge meant that
if Ms. Sanseverino’s actions, as opposed to those of Ms. Handy,
had caused Ms. Keljanovic to sign the transfer, the outcome of
the action would be different, that is Ms. Keljanovic’s execution
of the transfer would have been compromised by Ms. Sanseverino’s
undue influence. The trial judge emphasized that Ms. Handy was
not Ms. Sanseverino’s “agent.” She said:
I am not prepared to find that Kash was Maria’s agent
and was simply doing what Maria had been unsuccessful
in achieving. … I do not attribute the efforts to
persuade made by Kash, which efforts were successful,
to Maria.
[122] It was on the basis of this agency finding and the
trial judge’s conclusion that it was Ms. Handy, not Ms.
Sanseverino, who finally persuaded Ms. Keljanovic to sign that
the trial judge concluded that undue influence was not
established.
Analysis
[123] The ability of one person to dominate the will of
another is central to the concept of undue influence. Wilson J.
put it in this way in Geffen v. Goodman Estate, [1991] 2 S.C.R.
353 at p. ___: (p. 14 of the QL printout)
It seems to me rather that when one speaks of “influence”
one is really referring to the ability of one person to
dominate the will of another, whether through manipulation,
coercion, or outright but subtle abuse of power. … To
dominate the will of another seems to exercise a
persuasive influence over him or her.
[124] What will constitute undue influence will vary
depending upon the circumstances of the case, including the
relationship between the parties and the transaction in question.
See Hall v. Hall (11868), L.R. 1 P&D 485. As Wilson J. observed
in Geffen v. Goodman Estate, supra, the doctrine of undue
influence was developed “… not to save people from the
consequences of their own folly but to save them from being
victimized by other people.” See Allcard v. Skinner, [1886-90]
All E.R. 90.
[125] When Ms. Keljanovic signed the transfer she was
weakened by cancer and in a generally debilitated condition. She
was tranquilized, and receiving morphine for her pain. She was
hypoglycaemic.
[126] From 1987 forward Ms. Keljanovic had structured her
affairs so that her assets would be separate from Ms.
Sanseverino’s. The trial judge recognized this; she aptly
referred to Ms. Keljanovic and Ms. Sanseverino operating on a
“yours and mine” principle.
[127] Ms. Keljanovic had to be persuaded to sign the transfer
in the sense that she did not decide on her own that she was
going to sign it. Indeed, minutes before she agreed to sign the
transfer, she had indicated to Mr. Samis that she did not want to
sign it. Consistent with the trial judge’s finding on the
capacity issue, I have to assume that Ms. Keljanovic knew what
she was doing when she turned away from Mr. Samis and thus made
it clear at least to him that this was anything but the consent
transaction that Mr. Samis thought it was before he entered Ms.
Keljanovic’s hospital room on January 9th. Ms. Keljanovic’s
refusal to sign the transfer was consistent with her intentions
as reflected by her actions starting in 1987 when she changed
title to the Winnipeg Road property to a tenancy in common and
later her closing what was once a joint bank account. Her
refusal to sign was also consistent with her 1992 will in which
she specifically left her interest in the Winnipeg Road property
to her nephew Milutin.
[128] In my opinion, the trial judge made three important and
somewhat related findings. First, she concluded that, although
Ms. Sanseverino “virtually berated” Ms. Keljanovic to sign the
transfer, it was Ms. Handy who finally persuaded Ms. Keljanovic
to change her mind and sign. This was the product of a “but for”
causation analysis from which the trial judge concluded that Ms.
Handy’s persuasive powers, not Ms. Sanseverino’s emotional
outbursts, caused Ms. Keljanovic to sign the transfer. Second,
as I have said, the trial judge found that “Kash [Ms. Handy] was
a volunteer,” that is she was not Ms. Sanseverino’s agent.
Third, the trial judge concluded that without Ms. Handy’s
intervention “the outcome would be different.”
[129] I think that the trial judge’s analysis was flawed in
two respects. First, she failed to consider the cumulative
effect of the attempts to influence Ms. Keljanovic by both
Ms. Sanseverino and Ms. Handy. Put simply, her causation
analysis was too narrow. Second, in my opinion, the trial
judge’s finding that Ms. Handy was a volunteer, that is not
Ms. Sanseverino’s agent, is not supported by the evidence and is
thus unreasonable. I will deal with the agency issue first.
[130] Ms. Handy, who did not know Ms. Keljanovic well,
arranged for Mr. Samis to come to the hospital on January 9th.
She assisted Ms. Sanseverino in picking up the transfer from Mr.
Koplovic’s office. The sole purpose of Ms. Handy’s attendance at
the hospital was to help Ms. Sanseverino get Ms. Keljanovic to
sign the transfer. On January 9th, Ms. Handy and Ms. Sanseverino
had a common purpose which was to secure Ms. Keljanovic’s
signature on the transfer of the title to the Winnipeg Road
property to joint tenancy. They were not independent actors.
Ms. Handy asked Ms. Sanseverino to leave the hospital room
because she thought that without Ms. Sanseverino’s emotional
outbursts, Ms. Keljanovic could more easily be persuaded to sign.
In light of the evidence concerning the relationship between Ms.
Handy and Ms. Sanseverino, and the singular reason for the
attendance of both woman at the hospital on January 9th, I do not
think that the trial judge’s finding that Ms. Handy was not Ms.
Sanseverino’s agent can be sustained. It is a finding that is
not supported by the evidence.
[131] I accept that Ms. Handy was trying to advance Ms.
Sanseverino’s interests out of a sense of fairness. It may well
have been “fair” that Ms. Sanseverino. who cared for
Ms. Keljanovic during her terminal illness, take title to the
Winnipeg Road property as a surviving joint tenant. It is,
however, to be noted that it is also fair that a person in
Ms. Keljanovic’s vulnerable position be left to dispose of her
assets as she sees fit.
[132] In any case, it seems to me to be at odds with the
purpose to be served by the doctrine of undue influence to ignore
Ms. Sanseverino’s efforts to persuade Ms. Keljanovic to sign,
even if Ms. Handy was a “volunteer,” as found by the trial judge.
The doctrine of undue influence is designed to protect the
vulnerable from external influence which is undue. Thus, the
critical issue was whether Ms. Keljanovic, a vulnerable dying
woman, signed the transfer of her own free will. The issue is
not which of Ms. Handy or Ms. Sanseverino caused her to sign, but
rather whether, in all of the circumstances, the combined effect
of the influence brought to bear by Ms. Handy and Ms. Sanseverino
(and for that matter Mr. Samis) was undue. The trial judge’s
causation and agency analysis effectively, and in my view
wrongly, wrote Ms. Sanseverino (who the trial judge found
“virtually berated” Ms. Keljanovic) out of the script.
[133] When all of the influence imposed on Ms. Keljanovic is
considered, it seems to me to be clear that Ms. Sanseverino and
Ms. Handy together virtually besieged Ms. Keljanovic to change
her mind and sign the transfer. When the trial judge observed in
dealing with the causation issue that if Ms. Handy had not caused
Ms. Keljanovic to sign “the outcome would be different,” I think
that the trial judge must have accepted that Ms. Sanseverino’s
attempts to influence Ms. Keljanovic were undue. It would follow
that if the persuasive efforts of both Ms. Handy and Ms.
Sanseverino are taken into account the influence exercised by
them was undue.
[134] For these reasons, I would allow the appeal. If
required, I may be spoken to about the disposition of costs.
“C.A. Osborne A.C.J.O.”
1 The full description of this instrument is Transfer/Deed of
Land. It is Form 1 – Land Registration Act, 1984. Throughout
these reasons I will refer to it as a transfer.
2 1996 217 (SCC), [1996] 1 S.C.R. 254.