Court of Appeal for Ontario

Date: 2017-12-21 Docket: C62854 Judges: Simmons, Cronk and Paciocco JJ.A.

Parties

Between

Louis Stekar Applicant/Appellant

and

Thomas Wilcox Respondent/Respondent by Appeal

Counsel

Mark A. Klaiman, for the appellant

Paul E. Trudelle, for the respondent

Hearing

Heard: December 11, 2017

On appeal from: The judgment of Justice Sidney N. Lederman of the Superior Court of Justice, dated September 27, 2016, with reasons reported at 2016 ONSC 5835.

By the Court

Introduction

[1] Following the trial of an issue over the course of a six-day hearing, the trial judge granted a declaration that the Will of Jerrald McNamara (the "Deceased"), dated May 21, 2012 (the "2012 Will"), not be admitted to probate, dismissed the appellant's probate application, and awarded costs in favour of the respondent in the total amount of $100,000, payable by the appellant and Frank Stekar and Guilio D'Ambrosi, jointly and severally.

Issues

[2] The appellant appeals from the denial of probate for the 2012 Will. He argues that the trial judge erred: i) in determining that there were suspicious circumstances surrounding the preparation and execution of the 2012 Will; ii) in applying the test for testamentary capacity; iii) in holding that the Deceased lacked testamentary capacity at the time of the execution of the 2012 Will; and iv) in holding that the Deceased had no knowledge of and failed to approve the contents of the 2012 Will.

[3] For the reasons that follow, we conclude that the appeal must be dismissed.

Discussion

(1) Suspicious Circumstances

[4] We turn first to the trial judge's finding that there were suspicious circumstances surrounding the changing of the Deceased's earlier, January 15, 1999 Will (the "1999 Will"), and the making of the 2012 Will.

[5] At the appeal hearing, the appellant conceded that although some of the circumstances cited by the trial judge may not have been suspicious, others were. As a result, the appellant did not press his challenge to the trial judge's finding of suspicious circumstances.

[6] This was a prudent concession. The trial judge recognized, correctly, that suspicious circumstances regarding the making of a will may arise in various ways, including in connection with the preparation of the will or by reason of circumstances tending to call into question the capacity of the testator. He found that there were numerous suspicious circumstances surrounding the making of the 2012 Will. These included, but were not limited to, the following:

• The 2012 Will was prepared at a time when the Deceased was of questionable capacity due both to his historical and recent health issues and hospitalization, and his clinical condition and behaviour at a time proximate to the making of the 2012 Will;

• The 2012 Will provided for a radical change from the beneficiaries named in the 1999 Will. It also stipulated that a woman who had served as the Deceased's caregiver for less than one month prior to the date of the 2012 Will was to receive 10% of his Estate;

• The 2012 Will was typed, but the Deceased did not own a computer or a typewriter and had no means to create a typewritten document; and

• In various conversations in the days prior to the making of the 2012 Will, the Deceased had made multiple, contradictory statements regarding the identity of his intended beneficiaries.

[7] These circumstances, which are firmly anchored in the evidentiary record, strongly support the trial judge's finding of suspicious circumstances surrounding the 2012 Will. In our view, on this record, this key finding is unassailable.

(2) Testamentary Capacity

[8] The trial judge held, correctly, that the appellant bore the burden of proving the Deceased's testamentary capacity. The presumption of testamentary capacity otherwise applicable was displaced by the suspicious circumstances regarding the preparation and execution of the 2012 Will. It therefore fell to the appellant, as a matter of law, to establish the Deceased's testamentary capacity, as well as his knowledge and approval of the 2012 Will: see for example, Vout v. Hay, [1995] 2 S.C.R. 876.

[9] The appellant submits that, notwithstanding his admitted burden to establish the Deceased's testamentary capacity, the trial judge erred in his application of the test for testamentary capacity by disregarding key evidence about the Deceased's mental state. The appellant contends, for instance, that the Deceased's hospitalization and delusional symptoms in the 60 days prior to the execution of the 2012 Will were related to his drug use "and/or personality disorder for which the Deceased was subsequently medicated", and not his mental health.

[10] This submission is untenable. There was evidence at trial that in the two months prior to the making of the 2012 Will, the Deceased was involuntarily hospitalized for a lengthy period (about six or seven weeks) during which he suffered from hallucinations, delusions and confusion and was confined to a psychiatric ward. On his discharge from hospital on April 20, 2012 he continued to suffer from what medical personnel described as "shakable" delusions. In other words, the Deceased's delusional state, while not intractable, persisted following his discharge from hospital. Further, on June 1, 2012, just 10 days after the execution of the 2012 Will, the appellant was readmitted to hospital while exhibiting confusion and reduced alertness. He died in hospital on June 18, 2012.

[11] On this evidence, which was fully canvassed by the trial judge, there can be no sustainable suggestion that the Deceased's testamentary capacity was free from doubt at the time of the execution of the 2012 Will. Nor, in our view, can his clinical symptoms, described above, realistically be divorced from his mental health. There was no expert medical evidence at trial suggesting that the Deceased's delusions, which continued after his discharge from the hospital, were attributable solely to his drug use and did not implicate his mental health. In our view, the trial judge was entitled to conclude that his medical condition, including his delusional state and any personality disorder from which he may have suffered, clearly bore on his mental health and, hence, on the question of his testamentary capacity.

[12] The trial judge's reasons confirm that he came to grips with the evidence about the Deceased's mental state and relied on it in finding, at para. 69 of his reasons, that "The Deceased may have been suffering from delusions at the time of the execution of the [2012] Will that could have affected his testamentary dispositions" (emphasis added).

[13] Thus, contrary to the appellant's submission, the trial judge did not hold that the Deceased lacked the requisite testamentary capacity when the 2012 Will was executed. Rather, he held that the appellant had failed to discharge his burden to prove that the Deceased possessed the necessary testamentary capacity at the relevant time.

[14] The test for testamentary capacity has been well-established since the Supreme Court of Canada, in Skinner v. Farquharson (1902), 32 S.C.R. 58, adopted the formulation of the test offered in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, at p. 565:

It is essential to the exercise of such a power [of testamentary capacity] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. [Emphasis added.]

[15] The trial judge's reasons confirm that he was alert to the test for testamentary capacity and that he properly applied it to the facts of this case. The evidence of the Deceased's medical condition, recent hospitalization and clinical symptoms – both during and after his hospitalization – at a time proximate to the execution of the 2012 Will supported the trial judge's finding that the Deceased's testamentary capacity had not been established.

[16] We note, also, that there was no expert medical evidence at trial establishing the Deceased's testamentary capacity. Further, while various lay witnesses testified about their observations of the Deceased prior to and at the time of the execution of the 2012 Will, there was no evidence of anyone probing the Deceased's testamentary capacity prior to or at the time of the execution of the 2012 Will. Nor was there any evidence that anyone inquired into or explored with the Deceased his statements in a May 21, 2012 letter associated with the 2012 Will to confirm they were not the product of delusional or cognitive impairments. This was significant because there was evidence at trial indicating that some of the Deceased's beliefs about the respondent, recited in the letter, were inaccurate.

[17] As the trial judge noted, at para. 71, the "mere capacity to communicate testamentary wishes is not determinative" of testamentary capacity. Rather, the testator's wishes "must be shown to be the product of a sound and disposing mind": Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), at para. 15. The test to prove testamentary capacity is therefore a high one, which, in the face of suspicious circumstances, falls on the propounder of the will to satisfy.

[18] We therefore agree with the trial judge that, in the circumstances here, the appellant failed to meet his burden to establish the Deceased's testamentary capacity. On this ground alone, the trial judge's decision to deny the admission of the 2012 Will to probate was justified.

[19] This ground of appeal therefore fails.

(3) Knowledge and Approval of the 2012 Will

[20] We reach a similar conclusion regarding the trial judge's holding that the appellant also failed to satisfy his burden to establish the Deceased had knowledge of and approved the contents of the 2012 Will.

[21] Once again, contrary to the appellant's contention, the trial judge did not find, as a fact, that the Deceased lacked knowledge of and failed to approve the contents of the 2012 Will. Rather, he held that the appellant fell short of meeting his clear burden to establish such knowledge and approval.

[22] We agree. Indeed, in our opinion, this conclusion was inescapable on the record at trial. Specifically, it was supported by: i) the fact that the testamentary dispositions under the 2012 Will were completely at odds with the Deceased's testamentary intentions as communicated to his treating physician and various friends in the 60 days prior to the execution of the 2012 Will, as well as with the provisions of the 1999 Will; ii) the fact that the 1999 Will was handwritten by the Deceased himself, whereas he could not have prepared the typed 2012 Will; iii) the absence of any evidence at trial regarding the instructions for or the preparation of the 2012 Will; and iv) the absence of any evidence from Joy Vassal, who was present when the 2012 Will was executed and stamped and signed it.

[23] The trial judge held that these suspicious circumstances had a serious impact on the critical question whether the appellant had met his burden of proof to establish the Deceased's knowledge and approval of the 2012 Will.

[24] Again, we agree. As indicated by the Supreme Court of Canada in MacGregor v. Martin Estate, [1965] S.C.R. 757, at p. 766: "The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case."

[25] In this case, the cumulative circumstances surrounding the making of the 2012 Will cried out for an explanation and for evidence that the Deceased, in fact, had knowledge of and approved the contents of the 2012 Will. We see no error in the trial judge's conclusion that the appellant failed to meet his burden of proof on this important issue.

(4) Fresh Evidence

[26] Nor does the fresh evidence that the appellant seeks to tender on appeal alter the conclusions set out above. The proposed fresh evidence relates to Joy Vassal's involvement with the Deceased on the day of the execution of the 2012 Will, and the involvement in the preparation of the 2012 Will of one Elmo Fisher, a friend of the Deceased, whose existence and identity appear to have only recently become known to the appellant.

[27] Simply put, the proposed fresh evidence does not meet the test for the admission of fresh evidence on appeal in a civil case. That test contemplates, among other matters, that the proffered fresh evidence will be admitted if, by the exercise of reasonable diligence, it could not have been obtained prior to trial: Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), at para. 9. This due diligence requirement reflects "finality concerns, especially important in civil proceedings", which "demand a restrictive approach to the admissibility of evidence on appeal": Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 271, at para. 49, leave to appeal refused, [2016] S.C.C.A. No. 279.

[28] The due diligence requirement is not met here. The proposed fresh evidence was obtained as a result of the appellant's post-trial contact with Joy Vassal. This contact led the appellant and his associates to identify, locate and interview Elmo Fisher, who now appears to have been the person involved with the Deceased in the preparation of the typed 2012 Will.

[29] The difficulty, however, is that only cursory efforts were made by the appellant to contact Joy Vassal before or during the trial, notwithstanding her known attendance at the Deceased's home on the day the 2012 Will was executed and the critical fact that the 2012 Will bears her stamp, signature, telephone number, email, website and place of worship contact information.

[30] We agree with the respondent that, with reasonable due diligence, Joy Vassal could have been contacted before or during the trial – or even shortly after its conclusion, rather than many months after the release of the trial judgment. Her suspected involvement in the preparation of the 2012 Will could then have been ascertained and the trail leading to Elmo Fisher revealed. If there was any doubt about this, it is laid to rest by the fact that, many months after the trial judgment, the appellant was able to contact Joy Vassal and speak to her by telephone at the same telephone number set out on the face of the 2012 Will.

[31] Nothing in the appellant's materials on his fresh evidence motion suggests that the information now available concerning Joy Vassal's and Elmo Fisher's involvement could not have been obtained prior to or during the trial. To the contrary, the motion materials confirm that it was only after the release of the trial judgment that the appellant renewed his efforts to contact Joy Vassal. It is not open to the appellant, at this late date, to attempt to 'shore up' the case he led at trial by now introducing evidence that readily could have been obtained at a much earlier date upon the exercise of reasonable diligence.

[32] In addition, and importantly, the proposed fresh evidence considered as a whole does not have sufficient weight to justify its admission in the interests of justice given the lack of due diligence. It furnishes no proof of any probing of the Deceased's testamentary capacity given his recent history of hospitalization and delusional and confused behaviour, nor any questioning of the basis for his beliefs that led to the inclusion of some friends as beneficiaries and the exclusion of the respondent – his original, sole beneficiary – from the 2012 Will. The appellant, therefore, has failed to persuade us that the proposed fresh evidence, if available at trial, would likely have been conclusive of the result: see Sengmueller, at para. 9.

[33] The test for the admission of fresh evidence on appeal not having been met, leave to admit the proposed fresh evidence is denied.

Disposition

[34] For the reasons given, the motion for leave to admit fresh evidence on appeal and the appeal are both dismissed. The respondent is entitled to his costs of the leave motion and the appeal, fixed in the total amount of $15,000, inclusive of disbursements and all applicable taxes.

Released: December 21, 2017

E.A. Cronk J.A.

Janet Simmons J.A.

David M. Paciocco J.A.