Court of Appeal for Ontario

Date: June 29, 2018 Docket: C63016

Justices: Pepall, Brown and Trotter JJ.A.

Between

Loretta June Dujardin Plaintiff (Appellant)

and

Noel Dujardin, Trustee of the Estate of Jacques Henry Dujardin Defendant (Respondent)

Counsel

Joseph J. Neal, for the appellant

Frederick E. Leitch, Q.C., for the respondent

Heard

March 27, 2018

On Appeal

On appeal from the judgment of Justice Alissa K. Mitchell of the Superior Court of Justice, dated November 9, 2016, with reasons reported at 2016 ONSC 6980.

Trotter J.A.:

A. Introduction

[1] This appeal concerns the validity of two wills executed by the late Jacques Henry Dujardin ("Jack"). Jack and his brother Noel jointly owned a farm property that had been in their family since 1958. In 2009, they executed mirror wills – personal and corporate – leaving their equal interests in the farm to each other.

[2] When Jack died, he was married to Loretta June Dujardin ("Loretta"). He did not provide for her in his 2009 wills. However, he designated her as the sole beneficiary in a Registered Retirement Income Fund ("RRIF"), which was worth about $123,000 at the time of his death. Having been left nothing in the wills, Loretta challenged their validity. She contended that, as a result of chronic alcoholism, Jack lacked testamentary capacity. The trial judge dismissed Loretta's claim.

[3] On appeal, Loretta argues that the wills should have been declared invalid, and that the trial judge erred in not allowing a doctor to provide expert testimony in support of her position. I would dismiss the appeal.

B. General Background

[4] It is necessary to locate this dispute in the broader context of Jack's life, family history, and his relationship with his brother Noel.

[5] Jack was born in Belgium in 1942. As a teenager, he immigrated to Canada with his parents and seven siblings in 1958. Until 1966, the family farmed tobacco on lands owned by others, and eventually on the land that is the subject matter of the corporate will in dispute. In 1967, Jack's parents bought this farmland and incorporated Dujardin Farming Limited.

[6] Jack's mother died in 1980, and his father in 1983. Each of the siblings received a 12.5% interest in the farming corporation. Jack and Noel set about purchasing all of their siblings' shares. The brothers lived on the farm together and ran the farming business as a true partnership. They shared the physical work, while Noel had a greater role in the financial aspects.

[7] Jack met Loretta in 1982. They began a relationship in 1994 and she moved into the farmhouse late that year. Jack proposed marriage to Loretta in 1997.

[8] On February 27, 1998, after the brothers finally acquired all of the shares in the business, they executed mirror wills, leaving their entire estates to each other. This was before Jack married Loretta in 2000.[1] At the time, their lawyer was Douglas Gunn. He drafted the wills and provided legal services in relation to the farming business.

[9] In August of 2006, when Jack and Noel met Mr. Gunn to deal with corporate matters, Mr. Gunn advised the brothers to reorganize their affairs by executing both corporate and personal wills. This would minimize probate fees. Mr. Gunn sent them draft wills on September 20, 2006. The brothers did not do anything with the wills for some time. On March 9, 2009, they attended at Mr. Gunn's offices and executed the new wills. I will discuss this meeting in more detail below. As already noted, the brothers left their respective interests in the farm to each other.

[10] The dispute in this case arises as a result of Jack's lifestyle and his related health problems. Jack had a difficult relationship with alcohol. The evidence established that, during the day, he was a productive worker. However, when he finished his work in the late afternoon, Jack would go into the Town of Aylmer to have a couple drinks. When he returned home, he drank into the night, until he fell asleep. Noel testified that Jack purchased 40 ounces of liquor each day. Despite his alcohol use, the evidence established that, around the time he executed his 2009 wills, Jack was able to function properly at work and in his business dealings. A parade of witnesses from the local farming community testified that, while they knew that Jack liked to drink, they noticed nothing wrong with his cognitive functioning.

[11] In 2007, at age 65, Jack suffered a heart attack and was hospitalized for two weeks. This was after attending Mr. Gunn's office in 2006, but well before executing his 2009 wills. In the days following his heart attack, Jack was confused and not very communicative. He was on morphine at the time. However, those who visited him said that he soon came around and seemed more like himself.

[12] The anchor for Loretta's attack on the wills is medical documentation from that hospitalization. In a discharge summary, Dr. Timothy Burns wrote:

The main problem was with cognitive dysfunction and confusion disorientation thought to be due to organic brain syndrome secondary to alcohol abuse. Over the next week or two his sensorium cleared somewhat. [Emphasis added.]

[13] Other records confirmed Jack's improvement over the course of his hospital stay. Nevertheless, Dr. Burns wrote to the Ministry of Transportation suggesting that Jack should be tested before being permitted to drive. Dr. Burns saw Jack again in May of 2008 and noted no cognitive impairment as it related to his ability to drive. However, Jack was never able to reclaim his driving privileges.

[14] After being released from hospital in 2007, Jack was abstemious for a time, but it would appear that he eventually returned to alcohol. He had another heart attack in 2010. Jack had a stroke and died on December 26, 2011.

C. The Trial

[15] Leading up to the trial, Loretta was represented by counsel; by the time of trial, she was self-represented.

[16] Early on in the proceedings, in 2012, Loretta filed a Notice of Objection to the issuance of a Certificate of Appointment of Estate Trustee, itemizing the following concerns: (a) the deceased lacked testamentary capacity, and (b) the 2009 wills were not properly executed.

[17] During the discovery process, when Loretta had counsel, it was clarified that undue influence was not in issue. Loretta confirmed this position at trial. Consequently, the trial proceeded on the issues of whether Jack's wills were properly executed and whether he lacked testamentary capacity.

[18] At the beginning of the trial, counsel for Noel conceded that, because of Jack's chronic alcoholism, suspicious circumstances were present that cast the onus on his client to establish the validity of the wills. Accordingly, Noel, as the propounder of the wills, called his evidence first.

[19] Loretta indicated her intention to call an expert witness, Dr. Martyn Judson, to testify that Jack lacked testamentary capacity due to organic brain syndrome. Counsel for Noel opposed the admission of this evidence and took the position that, if Dr. Judson's evidence were to be admitted, he would attempt to adduce the expert opinion of Dr. Maurice Hirst of Western University in reply.

[20] The trial judge refused to admit Dr. Judson's evidence. Consequently, Noel did not attempt to lead expert evidence.

[21] Based on the entirety of the evidence, the trial judge found that Jack's wills were properly executed, that he knew and approved of their contents, and that he had testamentary capacity at the time they were executed.

D. Issues on Appeal

[22] Loretta contends that the trial judge erred in ruling Dr. Judson's evidence inadmissible. She further argues that the trial judge erred in finding that: Jack knew and approved of the contents of his wills; Jack possessed testamentary capacity; and the wills were properly executed. On appeal, Loretta also attempts to introduce the new issue of whether the brothers' lawyer, Mr. Gunn, received proper instructions to prepare the wills.

E. Analysis

(1) The Admissibility of Dr. Judson's Evidence

[23] Dr. Judson specializes in substance abuse treatment and addiction medicine. Prior to trial, Loretta's lawyer retained him to provide an opinion about Jack's testamentary capacity.

[24] Dr. Judson never met Jack. His opinion was based on Jack's hospital records following his 2007 heart attack, and other documents associated with this litigation (including examination for discovery transcripts).

[25] In his first of three reports, dated April 1, 2014, Dr. Judson briefly reviewed Jack's medical history, with emphasis on his hospitalizations. He noted references to organic brain syndrome in Jack's records and described the condition. Dr. Judson was of the opinion that Jack displayed a constellation of symptoms known as Wernicke-Korsakoff Syndrome. He concluded that, while Jack appeared to be significantly tolerant of alcohol and was able to function reasonably well physically, "[n]evertheless, the influence of the Organic Brain Syndrome definitely would have impaired his comprehension and ability to understand the contents of any legal document which he signed in 2009" (emphasis added). Based on Jack's typical patterns of drinking, Dr. Judson suggested that Jack was either drinking or experiencing withdrawal when he attended Mr. Gunn's office on March 9, 2009. He offered the opinion that Jack lacked testamentary capacity, concluding: "In all probability Mr. Dujardin did not appreciate the significance of statements made by him in his lawyer's office or the responsibilities associated with so doing" (emphasis added).

[26] In response to Dr. Judson's first report, Mr. Gunn obtained an opinion from a capacity assessor, who opined that Dr. Judson's conclusions were, at best, speculative. On June 17, 2014, Dr. Judson responded to the opinion of the assessor, denying that his initial opinion was "mere speculation." He wrote, "[i]n fact it is speculation to consider Mr. Dujardin not to have been impaired." After recounting his qualifications to make such judgments, Dr. Judson concluded his second letter by saying:

In summary, it is therefore possible to state that the likelihood that Mr. Dujardin was cognitively impaired as a result of alcohol consumption is far greater than the probability that he was not. That is not speculation but instead an unfortunate reality. [Emphasis added.]

[27] Dr. Judson wrote a third letter on November 10, 2015, this time responding to letters prepared by doctors who had examined Jack during his life, and an expert report written by Dr. Hirst on July 30, 2014. Dr. Hirst's report raised serious doubts about Dr. Judson's diagnosis. In response, Dr. Judson's opinion became far more tentative. Confronting the suggestion that Jack did not have Wernicke-Korsakoff Syndrome, he wrote:

Even if the support for the presence of the syndrome is weak, there is still the possibility that Mr. Dujardin may have not fully comprehended the legal advice provided to him on March the 9th, 2009 because of cognitive impairment.

In summary, if it is accepted that Mr. Dujardin experienced alcohol induced confusion on occasions, there is a degree of probability that he did not fully comprehend the details of the will that he signed. [Emphasis added.]

[28] Counsel for Noel objected to the admission of Dr. Judson's evidence on the basis that he purported to give an opinion on the ultimate issue in the case – Jack's testamentary capacity, a matter to be determined by the trial judge based on all of the evidence. In addition, referring to R. v. Mohan, [1994] 2 S.C.R. 9, and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, he argued that the evidence was inadmissible because it was not necessary, and that its admission would not be worth the time and cost involved. As already noted, if Dr. Judson were allowed to testify, reply evidence was anticipated.

[29] In an oral ruling in which she refused to admit Dr. Judson's evidence, the trial judge observed that his revised opinion became "significantly diluted from his original opinion and merely raises the possibility that Mr. Dujardin may have been suffering from a cognitive impairment making him unable to fully comprehend the legal advice provided on March 9, 2009." Concluding that Dr. Judson's opinion did not assist her on the testamentary capacity issue, the trial judge ruled as follows:

In accordance with the principles developed by the Supreme Court in Mohan and White Burgess, I exercise my discretion as gatekeeper of the evidence and find the evidence of Dr. Judson, in its totality, to be inadmissible. His watered-down opinion provides such little, if any, assistance to the court that the time consumed with his testimony and the testimony of responding experts outweighs any possible benefit to the court.

[30] I see no error in the trial judge's conclusion that the evidence was inadmissible on a cost/benefit analysis, in terms of balancing "relevance, reliability and necessity…against the counterweights of consumption of time, prejudice and confusion": R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47. See also White Burgess, at paras. 24 and 54.

[31] It would have been easy for the trial judge to have simply admitted Dr. Judson's evidence, and any opinion called in reply, postponing an exacting analysis of this body of evidence until the end of the trial. However, the modern approach to expert evidence requires more of trial judges. In R. v. Abbey, 2017 ONCA 640, 350 C.C.C. (3d) 102, Laskin J.A. said, at para. 53, "No longer should expert evidence be routinely admitted with only its weight to be determined by the trier of fact."

[32] Dr. Judson's initial opinion was a categorical assertion about Jack's incapacity, but after some pushback by those of a different view, he could only offer a most tentative, if not speculative, opinion. And this was just on paper. It is unlikely that cross-examination would have leavened Dr. Judson's opinion in a manner that would have helped Loretta's cause. The trial judge was entitled to conclude that his testimony would be of no value in resolving the critical issue of testamentary capacity.

[33] This case was fought and decided on the evidence of those who knew, interacted with, or treated Jack, not on the basis of experts who had never met or examined the man, and who could only offer tentative views on the ultimate issue the trial judge had to decide. This is a familiar state of affairs. In Ian. M. Hull & Suzanna Popovic-Montag, Macdonnell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016), the authors observe, at p. 61, that the question of testamentary capacity "is a practical one that, so far as evidence based on observation is concerned, may be answered by laypersons of good sense as well as doctors." See also Re Davis Estate, [1963] 2 O.R. 666 (C.A.), at p. 674.

[34] Ultimately, the trial judge was best placed to assess the potential value of Dr. Judson's evidence. Her conclusion is entitled to deference, especially given that it turned on her role as gatekeeper: see R. v. R.D., 2014 ONCA 302, 120 O.R. (3d) 260, at para. 51, citing R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 97, and R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 13, and Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 414 D.L.R. (4th) 65, at para. 41.

[35] In oral argument, counsel for Loretta argued that, because she was self-represented, the evidence should have been received in any event, especially since she was cross-examined on some of Jack's medical records. I disagree.

[36] First, in cross-examination, Loretta's opinion about Jack's mental functioning was tested by reference to the observations of the doctors who treated him. These documents had been assembled and submitted by Loretta as part of her case. There was no unfairness in this process.

[37] Second, it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence: Davids v. Davids (1999), 125 O.A.C. 375, at para. 36. However, a trial judge's duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 22: "A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented." Consequently, when dealing with expert opinion evidence, the gatekeeper function has no less of a role to play merely because one of the parties is self-represented.

[38] In this case, the trial judge properly exercised her discretion. I would dismiss this ground of appeal.

(2) Instructions to Prepare the Wills

[39] Loretta argues that there was no evidence that Mr. Gunn obtained proper instructions to prepare Jack's wills. I would decline to address this issue in full because it was not listed in the Notice of Objection, nor did Loretta raise it with the trial judge when asked to confirm the issues to be determined at trial.

[40] At trial, some of Loretta's questions and submissions touched on this matter, but it was not fully addressed. It would be unfair to Noel to consider this issue now on an inadequate record. However, I note in passing that, although the evidence was somewhat vague on this issue, the trial judge appeared to accept that Mr. Gunn received instructions to prepare the wills, even if he did not make a note of it. In any event, the brothers attended at his office 2 ½ years after the wills were prepared, willing to execute them. Thus, the record does not suggest that Mr. Gunn acted without instructions.

(3) Validity of the Wills

[41] Loretta argues that the trial judge erred in finding that Jack had testamentary capacity, and in failing to specifically address Jack's knowledge and approval of the wills' contents. In response, Noel contends that the trial judge did address knowledge and approval, along with testamentary capacity. He asserts that the trial judge's findings are grounded in the evidence and admit of no palpable or overriding error.

[42] Before evaluating these claims in more detail, I set out the framework for assessing the validity of a will. Ultimately, I conclude that the trial judge committed no palpable or overriding error in finding that Jack possessed testamentary capacity. I also find that, while the trial judge did not separately address the concepts of knowledge and approval, her findings about testamentary capacity also enveloped those concepts.

(i) The Framework

[43] Instead of traveling back through the mists of time, drawing upon age-old common law authorities on testamentary capacity, I start with the recent decision of this court in Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721. In this decision, Gillese J.A. provides a helpful outline of what is required to prove a will, at para. 77:

Proving a will in solemn form requires the propounder of a will to prove, in open court upon notice to all parties having a financial interest in the estate, that the will was duly executed, the testator had testamentary capacity and that the testator had knowledge and approval of the contents of the will: R. Hull & I. Hull, Macdonell, Sheard and Hull on Probate Practice, 4th ed., (Toronto: Carswell, 1996), at p. 315.

See also Brian A. Schnurr, Estate Litigation, 2d ed., vol. 1 (Toronto: Thomson Reuters, 2017), at pp. 2-1 to 2-6.

[44] The propounder of a will has the onus of proving that it was properly executed, in accordance with the Succession Law Reform Act, R.S.O. 1990, c. S.26 ("SLRA"), and also that the testator knew and approved of its contents: see Vout v. Hay, [1995] 2 S.C.R. 876, at para. 19. Upon certain preconditions being met, the propounder benefits from a presumption of knowledge and approval, as well as testamentary capacity. As Sopinka J. explained, at para. 26:

Upon proof that the will was duly executed with the requisite formalities, and having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

[45] This presumption is upended when there are suspicious circumstances (1) surrounding the preparation of the will, (2) calling into question the testator's capacity, or (3) tending to show that the testator's free will was compromised by coercion or fraud. As Sopinka J. said, at paras. 26-27:

Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will.

Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [Emphasis added.]

[46] Thus, where suspicious circumstances relate to the testator's mental capacity, they have the effect of displacing both the presumption in favour of knowledge and approval and that in favour of testamentary capacity. The broad effect of the spent presumption is demonstrated in Stekar v. Wilcox, 2017 ONCA 1010, 287 A.C.W.S. (2d) 199, where the trial judge found that there were suspicious circumstances surrounding the making of the challenged will, including that at that time, the deceased "was of questionable capacity due both to his historical and recent health issues and hospitalization" (para. 6). This court held, at para. 8:

The trial judge held, correctly, that the [propounder] 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 [propounder], 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 ... [Emphasis added.]

See also Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225, 304 O.A.C. 349, at paras. 83-84; Schnurr at pp. 2-18 to 2-19.

[47] In this case, counsel for Noel acknowledged the presence of suspicious circumstances, and those circumstances related to Jack's mental capacity. Consequently, the burden fell upon Noel, as the propounder of the wills, to establish that Jack knew and approved of their contents, and that he had testamentary capacity.

(ii) Formal Requirements Satisfied

[48] The trial judge properly addressed the formal requirements of the validity of the wills under s. 4 of the SLRA. In accordance with this section, there was ample evidence from Mr. Gunn, his law clerk Nancy Tuck, and Noel to support the conclusions that: (1) Jack signed his wills at the end of each document, (2) he signed them in the presence of two witnesses (Mr. Gunn and Ms. Tuck), and (3) the witnesses signed the wills in Jack's presence.

[49] Mr. Gunn had known Jack and Noel since 1997. He drafted their 1998 wills, which were in substance the same as the 2009 wills. Mr. Gunn had been involved in the affairs of Dujardin Farms Limited, preparing annual corporate resolutions for the brothers to sign. According to Mr. Gunn and Ms. Tuck, the brothers came into the office in August of 2006 to sign annual corporate documents. Mr. Gunn recommended that they execute both personal and corporate wills, the latter dealing with shares in the corporation. Mr. Gunn recommended this course of action for tax purposes. The wills were drafted and sent to the brothers on September 20, 2006.

[50] Mr. Gunn testified that, just like in the 1998 wills, neither Jack nor Noel wished to make provisions for anyone else. The brothers were "very, very close to each other and they were not thinking far beyond the one benefitting the other, if one were to die."

[51] When the brothers executed their wills on March 9, 2009, they had been in possession of the documents for two and a half years. On that day, Mr. Gunn read one each of the corporate and personal wills. He proceeded in this way because they were mirror wills. They were signed and witnessed immediately afterward.

[52] Ms. Tuck did not believe that either of the brothers had any difficulty understanding her. She noticed nothing unusual about Jack. She did not think that he had been drinking that day. If Jack had been drinking, she would have been aware of it. As Ms. Tuck explained:

I have the best nose in town. I would smell it. You know, I constantly look at people. I watch for visual cues. I make sure people are listening to me. I speak slowly. I make sure people understand, especially something as important as that. So, I went from face to face making sure people were giving me eye contact and I do that with everybody.

[53] On the day that the wills were executed, Mr. Gunn had no reason to believe that Jack had been drinking. He had never known Jack to attend his office after consuming alcohol. He had no problems communicating with Jack. He said, "I always thought that he was completely with it." Moreover, the brothers were fully aware of the assets at their disposal, which were principally the shares in the farming business.

[54] Mr. Gunn testified that when he drafted the wills in 2006, he knew that Jack was married. In a March 16, 2009 memo, Mr. Gunn recounted the meeting with the brothers on March 9, noting, "They said they didn't have any children and neither of them were married, although Jack said that he was about half married at this time. I don't know exactly what that means."

[55] Noel said that he drove himself and Jack to Mr. Gunn's office on March 9, 2009. They dealt with corporate matters, as well as the wills. Jack did not have anything to drink before attending. Mr. Gunn read one set of the wills out to the two of them. Noel understood the contents of the wills. It was his impression that Jack understood what he was doing when he signed his own wills.

[56] The trial judge found that Noel, as propounder of the wills, had the onus of proving compliance with the SLRA. At para. 20, she said, "The formalities have been proven and, therefore, it is presumed Jack knew of and approved the contents of the wills." There is no basis to disturb this finding, which rests on a very solid evidentiary foundation.

(iii) Suspicious Circumstances and the Displaced Presumption

[57] As the trial commenced, counsel for Noel acknowledged the presence of suspicious circumstances. He said, "There really is no question that [Jack] was a dedicated drinker and there is medical evidence which shows some effect of that on him at various times, and for the purposes of our procedure I accept that the proponent bears the obligation to prove the will in its solemn form" (emphasis added). During the ensuing colloquy with the trial judge, counsel seemed to agree that, in addition to bearing on testamentary capacity, he also faced the burden of proving knowledge and approval. This was later clarified in closing submissions, when counsel said, "I'm gonna start with due execution, knowledge and approval because that is something that we have to demonstrate on a balance of probabilities because my client bears the burden."

[58] In her reasons, the trial judge addressed the presence of suspicious circumstances, both in terms of the evidence and counsel's concession. As she said at para. 24, "The onus now shifts to Noel as propounder of the wills to prove on a balance of probabilities that Jack had testamentary capacity on March 9, 2009."

[59] I agree with counsel for Loretta that, on its face, this statement is incomplete. Vout v. Hay required that Noel establish testamentary capacity, in addition to knowledge and approval, all on a balance of probabilities. While the trial judge did not mention knowledge and approval in this passage, she addressed both of these requirements in her analysis of testamentary capacity. She specifically referred to knowledge and approval in her conclusions: see para. 44.

(iv) Testamentary Capacity, Knowledge, and Approval All Proved

[60] The trial judge commenced her analysis of testamentary capacity by setting out its constituent elements. Relying on Lata v. Rush, 2012 ONSC 4543, 219 A.C.W.S. (3d) 1008, at para. 32, and Royal Trust Corp. of Canada v. Saunders, [2006] O.J. No. 2291 (S.C.), at para. 58, the trial judge stated, at para. 25:

Testamentary capacity is established where the testator:

1. understands the nature and effect of the will;
2. recollects the nature and extent of his or her property;
3. understands the extent of what he or she is giving under the will;
4. remembers the people he or she might be expected to benefit under his or her will; and
5. understands the nature of the claims that may be made by persons he or she is excluding under the will.

The trial judge turned each of these elements into a question and answered all of them in the affirmative. She provided careful reasons. The evidence amply supported her conclusions.

[61] The issues of knowledge and approval were addressed in the trial judge's analysis under item 1. She found that Jack was aware that the corporation, in which he held an equal share with Noel,[2] owned the farmland on which they worked, and the farmhouse where they lived, for their entire adult lives. She found, at para. 26:

He understood the need to have a separate corporate will to avoid payment of probate tax. He understood that he and Noel were leaving the other their respective shares in the corporation and other assets because they were business partners. Understanding that Loretta would not benefit under the will, Jack took steps to provide for Loretta outside the will by setting up a RRIF.

[62] The 2009 wills must also be considered in their historical context. In 1998, the brothers had executed mirror wills to the same effect. As Mr. Gunn testified, at that time, the brothers were adamant about only benefiting each other in their wills. This intention persisted in 2006 when they discussed preparing their personal and corporate wills with Mr. Gunn.

[63] On the evidence before the trial judge, there was a sound basis to satisfy the knowledge and approval requirements. Absent any palpable and overriding errors, and there are none, the trial judge's findings cannot be disturbed.

[64] I reach similar conclusions on the issue of testamentary capacity. I do not intend to comb through the trial judge's reasons under each of the five questions she posed. The evidence supports her overall conclusion that, while Jack had his issues with alcohol, and his health suffered because of it, he was of sound mind when he executed his 2009 wills.

[65] There was a proper basis to conclude that suspicious circumstances existed concerning Jack's state of mind. Jack's 2007 hospital stay supplied the evidentiary foundation needed to cast the burden on Noel. However, he overcame that burden.

[66] Generally, the manner in which Jack disposed of his property made sense in the context of his life and familial relationships. As the trial judge said, at para. 31, "Jack shared a lifelong partnership with Noel as friends, brothers and business partners. Noel, in turn, shared the same intention." Moreover, their 2009 wills were for all intents and purposes identical to their 1998 wills.

[67] On the other side of the equation, there was an abundance of evidence that Jack did not share a close relationship with Loretta. The trial judge did not accept Loretta's testimonial protestations to the contrary. Nevertheless, Jack did provide for Loretta outside of the will, in the form of a RRIF. In the six months before Jack's death, Loretta received income from the farming corporation for what she claimed to be her "consulting services." She also received a Canada Pension Plan death benefit and she receives monthly dependent income from CPP. As the trial judge said, at para. 35, "The RRIF and other monies provided to Loretta for her direct or indirect benefit were an appropriate means by which to provide for Loretta as his spouse."

[68] There is no doubt that Jack was in rough shape when he arrived at the hospital in the middle of his heart attack in 2007. He was in a great deal of pain. He was given morphine. He appeared confused for a time by friends and family, but he improved leading up to his discharge. This episode led Dr. Burns to posit the possibility of "organic brain syndrome secondary to alcohol abuse."

[69] However, this assertion must be examined carefully. The trial judge noted, at para. 43, that no formal diagnosis of this condition was ever made, nor was any formal testing performed. There was no autopsy. Moreover, Dr. Burns saw Jack on May 8, 2008, and noted that he was "alert and well oriented, with no evidence of cognitive impairment."

[70] Most importantly, the trial judge found as a fact that there was no evidence of any cognitive impairment affecting Jack's capacity on the day that the wills were executed on March 9, 2009. This conclusion was well-supported by the evidence of Mr. Gunn, Ms. Tuck, and Noel. As the trial judge said, at para. 43:

At the time he executed his wills, the effects of the heart attack on Jack's cognitive abilities were more than a year and a half behind him and his death was more than two and a half years in front of him.

[71] I acknowledge that the trial judge made one puzzling comment in this same paragraph, when she said, "Chronic alcoholism, on its own, is not enough. Not all chronic alcoholics suffer from organic brain syndrome. The causal link does not exist on the evidence before me." There was no evidence to support this scientific observation. I am unclear of its source.[3] However, the finding was not critical to the trial judge's ultimate conclusion about Jack's testamentary capacity, which was based on a plethora of evidence from those who were in Jack's life at the time he executed his wills. As Mr. Gunn said, Jack was always "with it", just as he was on that day. Noel and Ms. Tuck were of the same view.

[72] Lastly, the appellant points to the trial judge's ultimate conclusions about capacity, knowledge, and approval and suggests that she did not observe the displaced presumption triggered by suspicious circumstances. I disagree. After reviewing all of the evidence, the trial judge said, at para. 44:

The medical evidence is insufficient to support a finding that Jack suffered from a debilitating mental condition preventing him from understanding and approving the contents of his wills and the claims which might be made against him. In fact, there is ample evidence to support a finding that, on a balance of probabilities, Jack met the test for testamentary capacity and had knowledge of and approved the contents of the wills on March 9, 2009 and so find that…on March 9, 2009 Jack Dujardin had testamentary capacity. [Emphasis added.]

Read as a whole, this passage reflects a proper application of the burden.

[73] I would dismiss this ground of appeal.

F. Conclusion and Disposition

[74] I would dismiss the appeal. In doing so, I repeat the observation made by trial judge. Even though Loretta will take nothing under Jack's wills, she may have entitlements to be determined under ss. 5(2) and 6(10) of the Family Law Act, R.S.O. 1990, c. F.3.

[75] Lastly, at the conclusion of the hearing, counsel agreed upon the proper quantum of costs of the appeal, depending upon which side succeeded. On this basis, I would order costs to the respondent in the amount of $16,000, inclusive of disbursements and HST.

Released: June 29, 2018

"G.T. Trotter J.A."

"I agree. S.E. Pepall J.A."

"I agree. David Brown J.A."

Footnotes

[1] Jack's marriage to Loretta had the effect of revoking this will: Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 16.

[2] The trial judge noted in a footnote that "Noel testified that he held one additional share although the financial and corporate records for the corporation indicate the brothers owned the shares 50/50." Nothing turned on this issue.

[3] It may have been in reference to Lata v. Rush, an authority the trial judge relied upon, in which Hainey J. said, at para. 30: "Alcoholism of sufficient extent and duration to cause brain damage may affect testamentary capacity although even a habitual drunkard while not under the excitement of liquor is capable of making a valid will" (emphasis added).