Court of Appeal for Ontario

Date: 2017-12-15 Docket: C62444

Judges: Hourigan, Brown JJ.A. and Himel J. (ad hoc)

Between

Star Sweetnam Plaintiff (Respondent)

and

Dianne Lesage and Terry Dooley in their capacities as estate trustee of the Estate of Martin Arthur Williamson Defendants (Appellant/Respondent)

Counsel

Earl Cherniak, Ian Hull and Doreen So, for the appellant, Dianne Lesage

Sean Graham, for the respondent/cross-appellant, Terry Dooley

Brendan Donovan and Gregory Sidlofsky, for the respondent, Star Sweetnam

Heard and released orally: December 12, 2017

On appeal from: the judgment of Justice Douglas K. Gray of the Superior Court of Justice, dated June 20, 2016.

Reasons for Decision

[1] One of two estate trustees appeals the decision of the trial judge which found that the testator lacked testamentary capacity at the time he made a will on August 16, 2010 and a will on September 8, 2010 but dismissed other claims made.

[2] Both estate trustees seek leave to appeal the costs award which was that the estate trustees should pay costs to the respondent to be borne by the estate trustees and not out of the estate.

[3] The case concerns a successful businessman who was married for 30 years and had one child who is now 45 years old. The testator separated seven years prior to his death but never divorced. He resided with his common law partner during those seven years. He owned two profitable companies that manufactured packaging materials and sold packaging materials as well as real estate assets.

[4] Following a seizure on July 20, 2010, he was diagnosed with brain cancer. He made two wills: one on August 16, 2010, leaving the majority of his estate to his common law partner and excluded his only child. In a second will, made on September 8, 2010, he repeated the exclusion of his daughter and left legacies to his common law partner, a friend from Québec, his former business associate, the two estate trustees and the residue of his estate to a number of friends, including a share of the residue to the spouse of one of the trustees.

[5] The testator attempted to change his will two further times but no new wills were signed before his death, on December 24, 2010.

[6] The trial judge heard evidence from a number of witnesses including the daughter, the estate trustees, former colleagues and friends, the former wife, the lawyers who prepared the wills, the lawyer who prepared a separation agreement between the testator and his wife, various treating doctors and experts called by each side. In his lengthy and detailed reasons, he outlined the evidence and why he preferred the evidence of the respondent's witnesses regarding the testator's behaviour following his diagnosis and the expert psychiatrist regarding the testamentary capacity of the testator.

[7] He applied the test for testamentary capacity as outlined in the leading jurisprudence. He concluded that the testator was not aware of the nature and extent of his assets at the time he made the wills, did not remember the person he might be expected to benefit under his will and did not understand the nature of the claims that may be made by persons he was excluding. He found that the dispositions were affected by delusions and articulated what those delusions were in his reasons.

[8] We see no palpable errors of fact. The inferences drawn by the trial judge were reasonably supported by the evidence. We see no errors in the analysis or the application of the law by the court below.

[9] The appeal is dismissed.

Costs Award

[10] On the issue of the costs award, costs of a proceeding are in the discretion of the court and the court may determine by whom and to what extent the costs shall be paid. While in estates matters costs awards are often borne by the estate, "… a court may order otherwise if an estate trustee has acted unreasonably or in substance for his or her own benefit, rather than for the benefit of the estate": See Brown v. Rigsby, 2016 ONCA 521, at para. 11.

[11] In the case at bar, the trial judge found that the estate trustees were adversarial and unreasonable in refusing to consider offers of settlement that were less than the result obtained and that they took unreasonable positions such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial. Both estate trustees were responsible in carrying the litigation forward. There is no reason to interfere with the exercise of discretion of the trial judge.

[12] The motion for leave to appeal the award to costs is dismissed.

C.W. Hourigan J.A. David Brown J.A. Himel J.