Court of Appeal for Ontario

Date: February 13, 2019 Docket: C64965

Justices: Pepall, Trotter and Harvison Young JJ.A.

Between

Livio Quaggiotto Plaintiff (Respondent)

and

Franco Quaggiotto Defendant (Appellant)

Counsel

Josephine Stark and Tom Serafimovski, for the appellant

Anita Landry and Raymond Colautti, for the respondent

Heard and released orally: February 5, 2019

On appeal from: The judgment of Justice Steven Rogin of the Superior Court of Justice, dated January 12, 2018.

Reasons for Decision

[1] This appeal involves an unfortunate dispute between two brothers over a codicil executed on August 18, 2014 by their 87 year old mother, Maria Quaggiotto who died on March 27, 2016. The codicil left the residue of her estate to the respondent son Livio. Her previous will had divided the residue equally between the respondent and the appellant son Franco.

[2] There was extensive evidence in the record that suggested that Mrs. Quaggiotto's disposition was not motivated by a lack of love for the appellant but by a belief that he was in a better overall financial position than the respondent and that the codicil would even up the discrepancy between the two brothers.

[3] Following a 10-day trial, the trial judge found in favour of the respondent and upheld the validity of the codicil. The trial judge wrote detailed reasons. He found that the respondent had satisfied his burden of proving due execution of the codicil and knowledge of its contents. There were suspicious circumstances but the respondent had met his burden of proving testamentary capacity and the respondent had successfully rebutted any inference of coercion or undue influence.

[4] The appellant appeals from that decision. Most of the issues he raises involve factual findings made by the trial judge or questions of mixed fact and law to which a standard of palpable and overriding error applies.

[5] We reject the appellant's submission that the trial judge misapprehended the evidence and erred in finding that Mrs. Quaggiotto had knowledge of the contents of her will when she executed the codicil. In particular, he submits that to have testamentary capacity, a testator must be aware of the value or magnitude of her estate. He argues that the trial judge found that Mrs. Quaggiotto had a general knowledge of her assets, however, this was inadequate to meet the knowledge requirement and in any event, there was no evidence that Mrs. Quaggiotto knew or was told about the value of her assets.

[6] We would not give effect to this submission. The factual finding that Mrs. Quaggiotto had knowledge of her assets was supported by the evidence. In support of his conclusion, the trial judge relied on the testator's knowledge of her holdings in the family corporations Blueview and Caboto Construction; the details of Mrs. Quaggiotto's assets found in the handwritten notes of her solicitor's assistant, Ms. Kerim. There was also the evidence of Ms. Bartol, a designated capacity assessor and practicing geriatric nurse consultant, whose June 6, 2014 report stated that she was satisfied that Mrs. Quaggiotto knew what her assets and her net worth were. Mrs. Quaggiotto knew she was changing the October 27, 2011 will drawn by her former solicitor, Mr. Corrent.

[7] Moreover, Mr. Corrent, who had met with her on many occasions since September, 2011 including in 2015 after she had executed her codicil, and who was not sympathetic towards her, felt strongly that she was knowledgeable with respect to her assets. Moreover Mr. Maggio and Ms. Kerim reviewed the codicil line by line with Ms. Quaggiotto and witnessed her signature. The Codicil described her assets in detail. Lastly, the law does not require that a testator have an encyclopedic knowledge of her assets. As stated by Justice Laskin in Orfus Estate et al. v. Samuel and Bessie Orfus Family Foundation et al., 2013 ONCA 225 at para. 60:

A competent testator does not have to know the precise makeup of her estate. She only need know in a general way the nature and extent of her property.

[8] Similarly, we would not give effect to the appellant's submissions that there was insufficient evidence to dispel the suspicious circumstances or that the trial judge imposed too high a burden in defining undue influence and in not finding that the respondent and his wife, Rosa, had pressured Mrs. Quaggiotto to change her codicil. Or, that he failed to set out the evidence he relied upon.

[9] Amongst other things, Rosa was not present during Mrs. Quaggiotto's appointment with Mr. Maggio, Ms. Kerim was. Both she and Mr. Maggio gave testimony on Mrs. Quaggiotto's capacity, instructions, and understanding. Mrs. Quaggiotto's 20-year family physician, Dr. Soong, felt she was able to make her own decisions and confirmed that she wished to change her will. He also confirmed much of the evidence given by Rosa. There was no evidence of domination of Mrs. Quaggiotto's will by that of another: Scott v. Cousins [2001] O.J. No. 19, para. 114 or pressure on her such that she had no realistic alternative but to submit to it: Abdollahpour v. Banifatemi, 2015 ONCA 834 citing Berdette v. Berdette (1991), 81 D.L.R. (4th) 194 (O.C.A.). The negation of any inference of coercion or undue influence was also supported by the evidence given by Ms. Bartol. There was sufficient evidence to support the trial judge's conclusions, he described the evidence relied upon, and there were no palpable and overriding errors that infected his conclusions. To the extent that the appellant has identified any factual errors, we do not view them as overriding.

[10] Nor did the trial judge err in his findings relating to Mr. Maggio. Mr. Maggio wanted an assessment as a condition of his retainer. This was his practice with elderly clients and he also wanted one due to Mrs. Quaggiotto's strong feelings about her new will. In preparing the codicil he relied on both Mrs. Quaggiotto's verbal instructions and her handwritten letter. Most significantly, the evidence taken as a whole, established that Mrs. Quaggiotto had testamentary capacity.

[11] Lastly, the appellant submits that the trial judge improperly relied on the evidence of the respondent and Rosa without the requisite corroboration required by s. 13 of the Evidence Act.

[12] We disagree. The trial judge was alive to the requirements of s. 13. Furthermore, Mrs. Quaggiotto's love of both sons and the terms of the general power of attorney for the CIBC did not detract from her desire to balance her two sons' financial well-being. Her intent in this regard was corroborated by the evidence of Mr. Maggio and his assistant, Ms. Kerim, is reflected in the codicil she executed, and did not simply emanate from the respondent and Rosa.

[13] For these reasons, the appeal is dismissed with costs of $20,000, inclusive of HST and disbursements to be paid by the appellant to the respondent.

S.E. Pepall J.A.

G.T. Trotter J.A.

Harvison Young J.A.