DATE: 20060915
DOCKET: C42846
COURT OF APPEAL FOR ONTARIO
SIMMONS, ARMSTRONG and LaFORME JJ.A.
B E T W E E N :
KOSTAS SORKOS
David S. Thompson, for the appellant
Respondent (Plaintiff)
- and -
BRIAN COWDEROY
C. Clifford Lax, Q.C. and Amy L. Block, for the respondent
Appellant (Defendant)
Heard: June 28, 2006
On appeal from the judgment of Justice J. G. Kerr of the Superior Court of Justice dated December 1, 2004.
LaFORME J.A.:
[1] Brian Cowderoy appeals from the decision of the trial judge admitting a copy of the will of his mother, Victoria Cowderoy, executed in 1997 for probate (the Will). Kostas Sorkos is the beneficiary under the Will, and was the testator’s common law husband of forty years up until the time of her death in 2001. If the Will fails, Brian Cowderoy stands as the sole beneficiary under another will executed by the testator in 1984.
[2] At trial, Mr. Sorkos admitted that the Will he had presented to the court for probate was a “cut and paste” photocopy that he had prepared.[^1] Mr. Sorkos testified that the Will had been properly executed, but lost. No signed copy of the Will was ever found.
[3] Mr. Cowderoy denied that his mother executed the Will; alternatively, he claimed that she lacked the testamentary capacity to execute it. In the further alternative, he argued that the Will was procured by undue influence; or, that the Will had been revoked.
[4] After hearing over five days of oral evidence, including the evidence of both of the witnesses to the execution of the Will, the trial judge admitted an unsigned copy of the Will for probate.
[5] On appeal Mr. Cowderoy limited his grounds of appeal to two issues: (i) the trial judge did not apply the correct legal test for probating a lost will, and (ii) the trial judge did not consider the doctrine of suspicious circumstances.
[6] Mr. Sorkos submits that the trial judge applied the correct legal test, and argues that in this case there is no factual basis to support the application of the doctrine of suspicious circumstances. He says that, while Mr. Cowderoy characterizes his grounds of appeal as “errors in law”, it is really an attempt to overturn findings of fact firmly grounded in the evidentiary record.
ANALYSIS
[7] I have decided the issues in the order that they were presented to this court by Mr. Cowderoy, namely, the trial judge’s application of the test for proving a lost will, and suspicious circumstances. After considering both issues, I conclude that there is no basis upon which to interfere with the findings and holdings of the trial judge, and I would dismiss the appeal.
(i) Proving a lost will:
[8] The test for proving a lost will requires that Mr. Sorkos demonstrate:
(1) due execution of the Will;
(2) particulars tracing possession of the Will to the date of death, and afterwards if the Will was lost after death;
(3) rebuttal of the presumption that the Will was destroyed by the testator with the intention of revoking it; and
(4) proof of the contents of the lost Will.[^2]
[9] The evidence clearly established the due execution of the Will, which the trial judge held to be identical to the one presented at trial. While Mr. Cowderoy points to inconsistencies in the evidence, it nevertheless remains uncontradicted that the testator executed the Will in the presence of two independent witnesses.
[10] Assuming that the presumption of revocation, as outlined below, applies in this case, Mr. Sorkos – on a balance of probabilities – would have been required to rebut the presumption that, because the executed copy of the Will was lost, the testator intended to revoke the Will. This burden flows from the principle that: when a will is traced to the possession of the testator and cannot be found at the date of death, there is a presumption that it was destroyed by the testator with the intention of revoking it: Lefebvre v. Major, [1930] S.C.R. 252 at 257.
[11] For two reasons it is doubtful that the presumption of revocation applies in this case. First, the trial judge found that the testator had -- apparently because of the progression of Parkinson’s disease -- likely lost her capacity to revoke the Will by 1998, the date at which the Will went missing. Second, the testator entrusted Sorkos with the Will and assumed Sorkos had kept the Will for safekeeping. Consequently, the presumption of revocation would not apply since the originally executed Will was not in the testator’s possession at the time it went missing.
[12] Once again, assuming the presumption of revocation does apply, it was considered and rejected by the trial judge, and the evidence in this regard supported his findings and conclusion. It is true that the trial judge did incorrectly state that Mr. Sorkos’ briefcase containing the Will was missing when in fact the evidence was that only the envelope containing the Will went missing. It appears to me that the trial judge merely misstated this evidence, which in my view is of no significance to his ultimate decision. I would not disturb his decision.
[13] It is correct, as counsel for Mr. Cowderoy points out, that in Ontario it appears that Mr. Sorkos must prove that the contents of the will reflect the testamentary intentions of the testator beyond a reasonable doubt: Re Craig, [1939] O.R. 175 (C.A.) at 179. However, other jurisdictions have held that the standard of proof required for the reconstruction of a lost will is that of reasonable probability: Re Wippermann, [1953] 1 All E.R. 764 at 766; Squires Estate v. Squires, (1979), 24 Nfld. & P.E.I.R. 288 (Nfld. D.C.). It may be that the time has come for Ontario to reconsider this issue, however, I do not think that this is the appropriate case in which to do so. The evidence in this case overwhelmingly satisfies the standard of proof required in Ontario to prove the contents of the Will.
[14] Two independent witnesses at trial identified a copy of the Will, which was executed by the testator in November 1997, and witnessed by them. This was the same Will provided to the testator by her lawyer in March 1997. Some of the evidence that supports that of the two witnesses includes:
• In January 1997, the testator’s solicitor attended at her residence to discuss the preparation of her will. She was thereafter to advise her solicitor as to whom she wanted to act as her executor and trustee.
• Her solicitor followed up on two occasions following his visit, and the testator indicated she had given no further consideration to her will. It was suggested that she speak to her son, about the will.
• At some point prior to March 3, 1997, the testator provided instructions regarding the will and pursuant to those instructions a draft will was prepared and sent to her for execution. She provided a copy of the draft will to her son later in March 1997 and he read and explained the terms of the draft will to her. He also advised her that his son had been left out in the clause providing for his other three children.
• Prior to October 28, 1997, her lawyer was advised that the draft will should be revised to reflect the fact that a portion of the estate was to be left to the benefit of all four of her grandchildren. The lawyer sent her a revised will on October 28, 1997. It was a copy of this will that was ultimately executed on November 14, 1997.
[15] Further, the evidence was that on the date of execution, the Will was read to the testator paragraph by paragraph and the meaning of each explained to her. The testator asked questions, to which answers were provided. This evidence, in my view, leaves no doubt as to the contents of the Will.
[16] The trial judge considered all four branches of the test for propounding a lost will, and he made no palpable and overriding errors in his factual findings. I would therefore dismiss this ground of appeal.
(ii) Suspicious circumstances:
[17] Once it is proven that a will was duly executed, the knowledge and approval of the contents of the will and testamentary capacity will be presumed. However, where there is evidence of suspicious circumstances, this presumption is vacated and the propounder must then prove that the testator knew and approved the contents of the will. If the suspicious circumstances relate to mental capacity, the propounder must also prove testamentary capacity. The standard of proof is not altered by the presence of suspicious circumstances; rather, it remains the civil standard of balance of probabilities: Vout v. Hay, [1995] 2 S.C.R. 876 at 888-89.
[18] Mr. Cowderoy argues that the trial judge failed to consider suspicious circumstances. In his factum he sets out a number of facts, which he says constitute suspicious circumstances that call into question the testator’s knowledge, approval, or testamentary capacity. While I acknowledge the existence of these facts, I do not agree with his submission that they amount to suspicious circumstances.
[19] Suspicious circumstances are those that call into question the preparation of the will, the capacity of the testator, and that the free will of the testator was overborne by acts of coercion or fraud: Vout v. Hay, supra, at 888. Those facts relied upon by Mr. Cowderoy, when considered in context with all the other facts as found by the trial judge, do not speak to these circumstances.
[20] Even though the doctrine of suspicious circumstances does not arise on these facts, contrary to the submission of Mr. Cowderoy, the trial judge did not presume that the testator knew or approved of the contents of her Will, or that she had the mental capacity to execute the Will at the time in question. Rather, the trial judge made factual findings that the testator knew and approved of the contents of her Will, and that she had the requisite mental capacity to execute it. There is no basis to interfere with these findings.
[21] The evidence in this case, and the findings by the trial judge, clearly were in favour of validating the Will. Regardless of who had the burden of proof, the evidence clearly established the elements required to probate the Will. I reject this ground of appeal.
DISPOSITION
[22] I would dismiss the appeal for the reasons just stated, and award costs to the respondent, Kostas Sorkos, fixed in the amount of $25,000 inclusive of GST and disbursements.
RELEASED:
“RPA” “H.S. LaForme J.A.”
“SEP 15 2006” “I agree Janet Simmons J.A.”
“I agree Robert P. Armstrong J.A.”
[^1]: Mr. Sorkos testified that, the only thing that was actually “cut and pasted” on the copy of the Will being considered was the testator’s signature. [^2]: Madam Justice Donna J. Haley, “Proving a Lost Will in Court” in B. Schnurr ed., Estate Litigation, 2nd ed. (Toronto: Carswell, 1994).