Seguin (now Porter) et al. v. Pearson
[Indexed as: Seguin v. Pearson]
Ontario Reports
Court of Appeal for Ontario
Strathy C.J.O., L.B. Roberts and Paciocco JJ.A.
April 10, 2018
141 O.R. (3d) 684 | 2018 ONCA 355
Case Summary
Wills and estates — Wills — Undue influence — Rebuttable presumption of undue influence arising only in context of inter vivos transactions and not applying in context of testamentary gifts — Trial judge erroneously conflating test for undue influence that applies to inter vivos transfers with test that applies to testamentary gifts — That error not affecting reasonableness of his conclusion that respondent did not exercise undue influence over testator.
The respondent lived with the testator in a common law relationship from 1995 until 2002, and then resumed cohabitation in 2006 and cared for the testator until his death. The appellant, the testator's daughter, challenged the testator's will, under which the respondent was the residual beneficiary of all of his property after specific bequests to his three daughters. The trial judge rejected the appellant's contention that the disposition to the respondent was the product of undue influence. The appellant appealed, arguing that the relationship between the testator and the respondent gave rise to a presumption of undue influence, which the respondent failed to rebut.
Held, the appeal should be dismissed.
The rebuttable presumption of undue influence arises only in the context of inter vivos transactions and does not apply in the context of testamentary gifts. The party attacking a will bears the onus of providing undue influence on a balance of probabilities. The trial judge appeared to have erroneously conflated the test for undue influence that applies to inter vivos transfers with the test that applies to testamentary gifts. However, that error did not affect the reasonableness of his conclusion that the respondent exercised no undue influence over the testator. The trial judge's decision turned on his findings of fact, which were firmly rooted in the evidence before him.
Cases Referred To
Procedural History
APPEAL from the judgment of H.K. O'Connell J. of the Superior Court of Justice dated February 29, 2016 (with additional reasons dated September 9, 2016).
Counsel:
- Michelle L. Kropp, for appellant
- Lionel J. Tupman, Amanda Bettencourt and John E.S. Poyser, for respondent
Reasons for Decision
[1] BY THE COURT: -- The appellant appeals from the dismissal of her action to invalidate her father's two most recent wills, under which the respondent is the principal beneficiary, and to set aside an inter vivos transfer of his house into joint tenancy with the respondent.
[2] At the conclusion of the appellant's submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are those reasons.
Factual Background
[3] The appellant and her sisters are the children of Robert Geddes Paterson, who passed away on December 23, 2011. Mr. Paterson had left his wife and daughters in 1981. He was estranged from his family until their reconciliation in 2002.
[4] Mr. Paterson met the respondent in 1994. They lived together in a common law relationship from 1995 until 2002, when the respondent left Mr. Paterson to pursue a new relationship. While separated, Mr. Paterson and the respondent kept in contact. They eventually resumed their relationship in 2006. The respondent was Mr. Paterson's caregiver until his death, and Mr. Paterson also recognized her as his common law spouse.
[5] This case turned on the validity of Mr. Paterson's most recent will, dated March 11, 2011, under which the respondent was the residual beneficiary of all of his property after specific bequests to his three daughters.
Trial Judge's Decision
[6] The trial judge rejected the appellant's contention that the disposition to the respondent was the product of undue influence. He found, on the basis of "all of the evidence", that the appellant had failed to prove that the respondent exerted dominance over Mr. Paterson's will.
[7] The main thrust of the appellant's appeal is that the trial judge erred in finding that the respondent had not exercised undue influence over Mr. Paterson.
[8] Specifically, the appellant submits that the relationship between Mr. Paterson and the respondent gave rise to a presumption of undue influence, which the respondent failed to rebut. In connection with this ground of appeal, the appellant argues that the trial judge failed to consider some evidence and misapprehended other relevant evidence.
[9] We do not accept these submissions for the following reasons.
The Test for Undue Influence
[10] First, the appellant mischaracterizes the test for undue influence in the context of testamentary gifts. The rebuttable presumption of undue influence arises only in the context of inter vivos transactions that take place during the grantor's lifetime. It arises from particular relationships when the validity of inter vivos dispositions or transactions is in issue; once the presumption is established, the onus shifts to the transferee to rebut the presumption: Banton v. Banton, [1998] O.J. No. 3528, 164 D.L.R. (4th) 176 (Gen. Div.), at p. 209 D.L.R.
[11] In the case of wills, it is testamentary undue influence, amounting to outright and overpowering coercion of the testator, which must be considered. The party attacking the will bears the onus of proving undue influence on a balance of probabilities: Vout v. Hay, [1995] 2 S.C.R. 876, [1995] S.C.J. No. 58, at p. 887 S.C.R.; see, also, Neuberger v. York (2016), 129 O.R. (3d) 721, [2016] O.J. No. 1164, 2016 ONCA 191, at paras. 77-78.
[12] We agree that the trial judge erred in his articulation of the test for undue influence applicable to testamentary gifts. When determining the validity of Mr. Paterson's March 11, 2011 will, the trial judge appears to have erroneously conflated the test for undue influence that applies to inter vivos transfers with the relevant test in relation to testamentary gifts.
[13] In our view, this error did not affect the reasonableness of his conclusions that the respondent exercised no undue influence over Mr. Paterson, and that Mr. Paterson independently decided to make the impugned wills and the transfer of property in favour of the respondent.
[14] The trial judge's finding that there was no undue influence using the inter vivos standard would necessarily be the same had the trial judge applied the correct standard applicable to testamentary dispositions.
Factual Findings
[15] Under either test, the trial judge was required to examine all of the relevant surrounding circumstances. As a result, the trial judge's decision turned on his findings of fact which were firmly rooted in the evidence before him. This included the medical and lay evidence of Mr. Paterson's state of mind and overall health; the nature and length of his relationships with the respondent and his children; and his instructions to his solicitors, which indicated that he had thought deeply and thoroughly about the disposition of his property.
[16] With respect to the solicitors' instructions, it was particularly significant to the trial judge that Mr. Paterson's wills and transfer were not the result of rash or emotional actions but followed several months of Mr. Paterson's deliberate reflection, coupled with the meticulous and comprehensive legal advice that he received from two experienced practitioners.
Incorporation of Counsel's Submissions
[17] Finally, the appellant directs our attention to para. 368 of the trial judge's lengthy reasons, which contains a reference to the respondent's evidence. The appellant submits that the trial judge erred in effectively incorporating by reference the written submissions of respondent's counsel into his reasons, without identifying the particular submissions adopted or engaging in an independent assessment of the trial evidence.
[18] We do not accept this submission. We agree that the trial judge should not have simply adopted by reference counsel's lengthy written submissions without identifying with more particularity the submissions that he endorsed and the basis for his agreement with them. However, when the trial judge's reasons are read as a whole, it is clear that his evidentiary analysis goes well beyond para. 368 and consists of an independent assessment of all of the relevant trial evidence. In that context, the reference to counsel's submissions serves no more than to indicate agreement with them, as evidenced by the balance of the trial judge's reasons.
[19] The appellant's submissions concerning the trial judge's evidentiary errors effectively invite this court to re-examine and reweigh the evidence. That is not our function. We see no error in the trial judge's findings that would permit us to intervene.
Costs
[20] The appellant also seeks leave to appeal the trial judge's determination of costs, arguing that the trial judge erred in failing to order that all of the appellant's trial costs be paid from her father's estate. The appellant also argues that the quantum of costs ordered should be reduced.
[21] We disagree. While acknowledging that he had the discretion to order payment of all of the appellant's costs from her father's estate, the trial judge determined that it would be unfair to do so. The appellant was entirely unsuccessful at trial and payment of her costs from the estate would effectively leave the respondent with nothing. The trial judge nevertheless exercised his discretion to order that a part of the appellant's costs be paid from the estate. We see no error in the trial judge's discretionary decision, which is entitled to deference. Further, the appellant has not identified any reviewable error in the amount of costs ordered by the trial judge.
Disposition
[22] Accordingly, the appeal and leave to appeal are dismissed.
[23] The respondent is entitled to her partial indemnity costs in the amount of $15,000, inclusive of disbursements and applicable taxes.
Appeal dismissed.
End of Document
