Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210622 DOCKET: C67599

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Brenda Bayford Plaintiff (Respondent)

and

Brian Boese, Kaitlyn Boese, Alexander Boese, Erin McTeer and Michelle McTeer Defendants (Appellant)

Counsel: Earl A. Cherniak, Q.C., Ian M. Hull and Doreen Lok Yin So, for the appellant Taayo Simmonds, for the respondent

Heard: December 16, 2020 by video conference

On appeal from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 1, 2019.

Harvison Young J.A.:

Endorsement

[1] The appellant, Brian Boese, appeals from the trial judge’s judgment declaring that his brother Bruce’s will had been validly executed in accordance with s. 4(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). The only issue on this appeal is whether the trial judge erred in finding that the respondent Brenda Bayford had discharged her burden to prove the formal validity of the will, which she claimed to have found a number of weeks after his death in June 2015.

[2] For the reasons that follow, I conclude that the appeal must be allowed on the grounds that the trial judge fell into palpable and overriding error. Having carefully reviewed the record before us and the submissions of counsel, I am of the view that the trial judge misunderstood the appellant’s position and, as a result, mistakenly considered the expert evidence to be irrelevant. This tainted her approach to the rest of the evidence.

Factual Background

[3] Bruce Boese was the owner of a farm. He never married and had no children. Brenda Bayford was a long-time friend of Bruce. She had assisted Bruce with the operation of the farm for the two decades before his death and described him as her best friend. Bruce executed a will in 1992, which named his parents as the sole beneficiaries of his estate. Because they had pre-deceased Bruce, Bruce’s estate would pass on an intestacy to Brian (50%) and the two daughters of his deceased sister Rhonda (50%) in the absence of a subsequent valid will.

[4] In 2009, Bruce named Brenda as his attorney for property and personal care. In the summer of 2013, Ms. Fraser, the legal assistant of Bruce’s long-time lawyer, Timothy Colbert, prepared a draft will. There was no allegation that the substantive terms of the will reflected anything other than the instructions given by Bruce to Mr. Colbert. Ms. Fraser prepared the will based on instructions from Mr. Colbert, and it was sent to Bruce for review and comment. Bruce did not, however, attend at Mr. Colbert’s office to revise and/or execute that document before he died. There is no dispute that the 2013 draft will named Brenda as the sole trustee of the estate nor that it left her the farm property.

[5] The 2013 will is dated August 15, 2013. The date is typed and appears on the third and final page of the document. It has the word “DRAFT” stamped on every page. Two copies were marked as exhibits at trial. One copy included only Bruce’s signature with no witness signatures (“Version 1”). “Version 2” included Bruce’s signature and those of the two witnesses, Ms. Gordon and Ms. Desarmia.

[6] The central factual issue at trial was whether, as Brenda claimed, Version 2 had been signed and witnessed before Bruce’s death, or whether, as Brian claimed, the witnesses’ signatures had only been added after Bruce’s death and after Brenda discovered that Version 1 was not valid without the signatures of witnesses.

[7] After Bruce’s death, Brenda searched for a will. She testified that she first found Version 1 of the 2013 will that had only Bruce’s signature, but not those of the witnesses. She took it to Mr. Colbert’s office the day after Bruce’s death and testified that she was surprised to find that Mr. Colbert’s office did not have a fully executed copy of the Will. On that occasion, Mr. Colbert’s assistant, Ms. Fraser, made a copy of the original of Version 1 and returned it to Brenda. Although there is no dispute that Ms. Fraser also advised Brenda on that occasion that, Version 1 was not valid without having been witnessed, other aspects of that conversation were disputed and will be discussed below.

[8] Brenda’s evidence, accepted by the trial judge, was that a few weeks later, after having run into the one of the two witnesses who subsequently testified that they witnessed Bruce sign the will on August 15, 2013, she returned to Bruce’s house and searched again. This time, she testified, she found Version 2, signed and witnessed, on top of a kitchen cupboard, and not in the filing cabinet where she had found Version 1.

[9] Brian’s position at trial was that Brenda, with the cooperation of Ms. Desarmia and Ms. Gordon, created Version 2 after Bruce’s death, and after she discovered that Version 1, though signed, was not valid. The fact that the original of Version 1 was never produced at trial supported this inference, as did the numerous inconsistencies in Brenda’s evidence at trial, all of which the trial judge resolved in her favour. In particular, her explanations as to what happened to the original Version 1 were inconsistent and lacking in credibility.

[10] On appeal, Brian maintains his position that the reason that the original of Version 1 has never been produced is that this is the document that was “witnessed” at some point in the weeks following Bruce’s death. His central argument is that the trial judge misapprehended the content and significance of expert evidence which was that Bruce’s signatures on Version 1 and Version 2 were copies of one another, and that this misapprehension tainted the rest of her findings. The handwriting expert was called to compare the signatures between Version 1 and Version 2. At trial, neither original version was available, and so the trial judge, and the handwriting expert, had to rely on the photocopies.

[11] Brenda has filed a motion for fresh evidence because the original of Version 2 has been found, having been produced by her former lawyers. As I will explain later in these reasons, I would not admit this fresh evidence as it is unlikely to be conclusive of the issues on appeal, and it is not necessary to deal with the issues fairly.

The Evidence

[12] Because a number of inconsistencies in the evidence form part of the context for the assessment of the expert opinion, it will be useful to set them out along with the trial judge’s findings on those points.

The whereabouts of the original of Version 1

[13] No original of either Version 1 or Version 2 was produced at trial. Brenda testified at trial that after she found Version 2, she visited a law firm and left the originals of both Version 1 and Version 2 with the lawyer she retained. Under cross-examination, however, she was taken to her examination for discovery where she was asked what had become of the original of Version 1 and responded that she had misplaced it. When presented at trial with that response, she stated that she did not remember that series of questions, saying that “I know it went to the lawyer”, and “I may have said that, but everything went to my lawyer”.

[14] The trial judge found that the answer at trial was simply a correction of her answer at discovery. She went on to observe that “the existence of the original of Version 1 does not affect the validity of Version 2” (at para. 61). This raises the concern that the trial judge was not alive to the appellant’s position that the reason there was no original of Version 1 is that it had become Version 2. She also held, at para. 63, that “[i]t was not incumbent upon Ms. Bayford to produce the original of Version 1” but rather upon Brian as it was significant to his theory of the case.

The evidence of Ms. Desarmia and Ms. Gordon

[15] Ms. Desarmia and Ms. Gordon, friends of Brenda who also knew Bruce, both testified that they had gone to Bruce’s farm on August 15, 2013 for different reasons. Ms. Desarmia went to help Brenda work on a Halloween display that Brenda was planning for her house, and Ms. Gordon went to get tomatoes for hamburgers she was planning to cook that evening for a family celebration.

[16] According to Ms. Desarmia, she saw Bruce at the farm, who expressed frustration about not being able to get his will done. Ms. Desarmia explained that he did not need to go to his lawyer’s office to get his will done, and she offered to assist by witnessing his signature on the will. Ms. Gordon testified that Bruce asked her if she would do him the favour of witnessing his will. Both witnesses testified that they witnessed Bruce sign the will and then each signed the will in the kitchen.

[17] There were a number of discrepancies in the precise details of the two witnesses’ signature, for example, who was standing and who was sitting, whether they all used the same pen, and the order of signatures. The trial judge found those all to have been “in keeping with the frailty of human memory” (at para. 80) and “in keeping with the nature of the event” (at para. 84) and accepted their evidence.

The visit to the lawyer’s office the day after Bruce’s death

[18] Brenda testified that the day after Bruce died, she took Version 1, which had Bruce’s signature in ink, to Mr. Colbert’s office where she spoke to his assistant, Ms. Fraser. Brenda stated that she was taken aback to discover that the office did not have the fully executed version of the will. The trial judge found that Ms. Fraser made a photocopy of Version 1 and returned the original Version 1 to Brenda.

[19] Ms. Fraser testified at the trial. Although she testified that Brenda said, in response to Ms. Fraser’s explanation that because the will was not witnessed, it was not valid, “I saw him sign it”, Brenda denied having made that comment and the trial judge accepted Brenda’s evidence on the point. She also accepted that Brenda was “taken aback” that there was no original fully executed version of the will in light of the fact that the version Brenda had was stamped “DRAFT”.

Finding Version 2

[20] Brian called Mr. Leonard Stavenow, the proprietor of an equipment rental store in the area. Brenda had gone into the store about two weeks after Bruce’s death, and spoke to Mr. Stavenow about having lost her best friend. He testified that Brenda confided in him about the status of the will, and that she had said both “it was not signed” and that the “rough copy shows intent”.

[21] At trial, Brenda stated that she did not recall telling Mr. Stavenow that the will was not signed. The trial judge noted that Brenda was taken to a transcript from her examination for discovery, where she had first said that she told Mr. Stavenow that the will was not signed and then had changed or corrected her answer to say that she told Mr. Stavenow that the will was not witnessed. The trial judge found no contradiction between Brenda’s evidence at trial and her evidence on examination for discovery on this point. The trial judge also found that although Mr. Stavenow presented as a straightforward person and was a credible witness, the conversation had lasted only three to five minutes and concluded that he had misunderstood what Brenda said to him. She concluded that he was not reliable as to what Brenda had said about Version 1.

[22] Brenda testified that about three or more weeks after Bruce’s death, she had a chance meeting with her friend Ms. Desarmia and told her that she could only find Version 1. This meeting occurred after Brenda attended at Mr. Stavenow’s store. Ms. Desarmia, in response, informed her that she had in fact witnessed Bruce’s signing of the 2013 will. Brenda immediately returned to the farm and searched for an executed and witnessed will, which she ultimately found in an envelope on top of a cupboard in the kitchen (Version 2). Brenda testified that although she was not in the kitchen at the time that the will was executed on August 15, 2013, she was outside around the machine shed about 100 feet away. This raises the question as to why she would not have known at the time that Bruce had asked them to witness the will, particularly given Ms. Desarmia’s evidence that she remained at the farm for a few hours after that to assist Brenda with the Halloween display.

[23] The trial judge accepted Brenda’s evidence on all points where it contradicted with that of other witnesses. She also accepted her evidence about the circumstances and place of her discovery of Version 2 of the will.

Ms. Lewis’ expert evidence

[24] Against this backdrop, the evidence of the handwriting expert was important. Ms. Lewis was qualified to give expert evidence on the following 2 issues:

(i) Whether Version 1 and Version 2 were forgeries, based on a comparison with other documents that contain signatures that were known to be Bruce’s; and

(ii) Whether Bruce’s signature that appears in Version 1 and Version 2 are the same – with one signature being a copy of the other.

[25] As explained above, because no originals were available at trial, Ms. Lewis had only the two photocopies to compare. With respect to the first question, Ms. Lewis testified that she was unable to draw a conclusion as to whether Bruce was the person who signed the two versions. With respect to the second question, however, she testified that “those two questioned documents … had copies of the same signature.” She explained that she had prepared a transparency chart of the two signatures from the two versions of the will and that she had positioned one signature on top of the other “to make it easy to look at them and see that the design is the same, the spacing is the same, the details are accurate.”

[26] She explained that this was important because in forensic document examination, “one of the rules is that no one writes exactly the same way twice because handwriting doesn’t really allow us to precisely reproduce a signature in every detail just because the active writing always includes a little bit of natural variation in the writing.” She used the transparency overlay in this case because she wanted to show the two questioned signatures together because “they are the same signature, in my opinion.” Using the transparency was useful because one could see that each signature fit accurately over the other. She concluded that “[t]he two signatures were copied from one signature. I should say they are one signature.”

The Law

[27] Questions of fact are reviewable on a standard of palpable and overriding error, while questions of law are reviewable on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10.

[28] A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. Doherty J.A. noted, at p. 218, that most errors that constitute a misapprehension of evidence will not be regarded as involving a question of law. However, appellate intervention is warranted where the misapprehension of evidence is palpable and overriding, such that it is plain to see or obvious and goes to the very core of the outcome of the case: see Waxman v. Waxman, at paras. 296-97, leave to appeal refused, [2004] S.C.C.A. No. 291; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125, leave to appeal refused, [2020] S.C.C.A. No. 409.

[29] The onus of proving the formal validity of a will lies on the propounder of the will, in this case, the respondent Brenda: see Vout v. Hay, 1995 SCC 105, [1995] 2 S.C.R. 876, at p. 887.

[30] The requirements for the formal validity of a will are set out at s. 4(1) of the SLRA, as it was at the relevant time:

(a) at its end [the will] is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

[31] The purpose of the statutory requirement of two or more witnesses is to prevent fraud by ensuring that there is probative evidence to support a conclusion that the testator wanted to give effect to the contents of their will by signing it in the presence of others. The testator’s intent is thus irrelevant to the formal validity of a will.

Analysis

[32] A review of the evidence of the handwriting expert, Ms. Lewis, along with the positions of the parties at trial as well as the other evidence and the trial judge’s reasons, indicates that the trial judge’s main error was misapprehending the import of the expert’s evidence. This bore on the central issue of the case, which was whether Bruce signed the will in 2013 before two attesting witnesses who were present at the time and who signed as witnesses before him.

[33] First, the trial judge understated the content of Ms. Lewis’ opinion. Ms. Lewis did not say merely that it was “completely likely” that Bruce’s signature on Version 1 and Version 2 were copies of the same signature. She said, and demonstrated with the overlay of the two signatures, that they were copied from one signature. While Ms. Lewis stated that it is always preferable to have originals, these were “above average” copies and she was very satisfied that they were accurate.

[34] The most serious problem with the trial judge’s reasons with respect to the expert’s evidence, however, is that it is not at all clear that she appreciated its significance. The expert’s evidence was that Bruce’s signatures were the same signature or copies of each other and that no one signs the exact same way twice. In essence, this meant that Bruce could not have signed both Version 1 and Version 2 separately with original signatures. While the expert did acknowledge in cross-examination that tracing could explain this, she also stated that she did not include this possibility in her report because “the evidence I observed didn’t lead me to believe it was a possibility”.

[35] It was established in Brenda’s and Ms. Fraser’s evidence that the document Brenda brought to Mr. Colbert’s office, Version 1, had an ink signature. It was similarly accepted by the trial judge that Brenda had brought the original Version 1 will to Mr. Colbert’s office. One of the possible implications then, of the expert’s evidence, was that Bruce’s signature on Version 2 was a reproduced copy of Version 1. The original Version 1, which was unwitnessed when Brenda found it after Bruce’s death, could also have been converted into Version 2 by having “witnesses” sign it directly.

[36] There is nothing in the trial judge’s reasons to indicate that she understood that if the signature on Version 2 was a copy from or the same as the signature on the unwitnessed Version 1, and not simply another original signature that Bruce had signed on a separate occasion in the presence of the two witnesses, there would be significant reason to doubt the validity of the Version 2 will. Put simply, it is not clear that the trial judge understood that the expert’s evidence supported an inference that the two witnesses signed Version 1 after Bruce’s death. She specifically observed that it was “in any event, difficult to understand how Ms. Lewis’ evidence is helpful to Brian.” Her statement that Brian’s description of Ms. Lewis’ evidence as “clear and equivocal” was an “overstatement” is inaccurate. The bottom line of Ms. Lewis’ evidence was, as I have set out, very clear. Apart from this comment, the trial judge did not indicate whether or not she was accepting any, all or none of Ms. Lewis’ evidence.

[37] The trial judge’s failure to expressly grapple with this evidence was a serious error in the circumstances of this case. Had she clearly understood the potential implications of Ms. Lewis’ conclusion that the two signatures were copies of the same signature, she would most likely have approached the other evidence somewhat differently, including the missing Version 1 with Bruce’s ink signature on it and the inconsistencies in Brenda’s evidence regarding how she discovered Version 2 of the will.

[38] For instance, there is nothing to indicate that the trial judge understood the significance of the missing original Version 1 with Bruce’s signature on it, particularly given the fact that, as the trial judge did note, Brenda gave inconsistent explanations as to what had happened to it. The trial judge stated twice that the existence of the original Version 1 does not affect the validity of Version 2. To the contrary, the significance and relevance was the possibility that the original Version 1 was the very version that Brenda had arranged to have the “witnesses” sign, or that the signature on Version 1 was copied to create Version 2 which was then signed by the two witnesses. The expert’s evidence that the signatures were copies of each other supported these theories.

[39] In addition, had the trial judge understood the implications of the expert’s evidence in light of Brian’s theory of the case, she would likely have approached Brenda’s evidence on how she discovered Version 2 differently. In accepting Brenda’s evidence, the trial judge noted:

The theory of Brian’s case is that Ms. Bayford colluded, conspired, or connived with Ms. Desarmia and Ms. Gordon to create Version 2. I find that Ms. Bayford’s conduct in the days and weeks following Bruce’s death runs contrary to that theory. Ms. Bayford’s conduct enhances the credibility of her evidence as to when and how she discovered the existence of Version 2:

• Why would she, on the day following Bruce’s death, attend at Mr. Colbert’s office with Version 1 and acknowledge to Ms. Fraser that she did not have a fully-executed version of the 2013 Will?
• Why, approximately 12 days after speaking with Ms. Fraser, would Ms. Bayford acknowledge publicly (to Mr. Stavenow in front of others) that the 2013 Will was unsigned in some way?

[40] The trial judge’s questions suggest that she misunderstood Brian’s position and mistakenly considered the expert evidence to be irrelevant. First, the uncontradicted evidence that Brenda took Version 1 to Mr. Colbert’s office the day after Bruce’s death is entirely consistent with Brian’s theory of the case that, at this point, there was no Version 2. It is also consistent with Ms. Fraser’s evidence that Brenda said “I saw him sign it” when Ms. Fraser informed Brenda that, because it was not witnessed, Version 1 was not a valid will. This suggests that Brenda did not realize that the will needed to be witnessed by two witnesses to the testator’s signing of the will. In other words, a plausible answer to the first question is that when Brenda took Version 1 into Mr. Colbert’s office, she thought it was valid and was taken aback, not upon being told that the office did not have a fully executed copy of the will, but upon being told that Version 1 was not valid. The trial judge accepted Brenda’s evidence on the point. Further, rather than ask why Brenda brought Version 1 to Mr. Colbert’s office after Bruce’s death, the expert’s evidence should have caused the trial judge to ask how Brenda could attend the office with an original of Version 1, with a yet to be discovered original Version 2 existing contemporaneously in the farm’s kitchen and containing an identical signature.

[41] Second, there is an obvious response on the evidence presented at trial to the second question posed by the trial judge with respect to Brenda’s conversation with Mr. Stavenow. That response is that when she visited Mr. Stavenow’s store, Brenda had not yet considered the possibility of creating Version 2 out of the signed Version 1. This explanation would be consistent with Brian’s theory of the case and the expert’s evidence that Bruce’s signatures on both versions were the same or copies of each other. It would also be consistent with the events as found by the trial judge, which was that Brenda’s visit to Mr. Stavenow’s store preceded both her chance meeting with Ms. Desarmia and her discovery of Version 2 several weeks after Bruce’s death. However, there is no indication that the trial judge appreciated this possibility, despite Brian’s argument regarding Brenda’s collusion to create Version 2 and the expert evidence.

[42] As I outlined earlier, there were a number of inconsistencies in Brenda’s evidence. While a trial judge’s findings of fact attract significant deference, and the bar for misapprehension of evidence is high, it is met in this case. Had she been alive to the essence of Brian’s claim and the significance of Ms. Lewis’ evidence, which she did not reject, the trial judge still might have resolved the inconsistencies as she did. But her dismissal of all of the inconsistencies in Brenda’s favour in the absence of a full appreciation of the substance and significance of the expert’s evidence went to the heart of this case and its outcome. The misapprehension of the expert evidence was obvious and essential to her conclusion that Version 2 was valid and constitutes palpable and overriding error.

[43] The trial judge made a number of other, related errors. She stated correctly that intent is not relevant to the formal validity of a will, and she correctly indicated that the evidence of Bruce’s intention was inadmissible. However, she included Brenda’s evidence of Bruce’s intention to change his will in her recitation of the facts and noted at the beginning of her analysis, at para. 32, that “Brian is not alleging that the 2013 Will reflects anything other than the instructions given by Bruce to Mr. Colbert with respect to the substantive terms of the will”, which suggests that intent did play a part in her conclusion that Version 2 was valid.

[44] In addition, the trial judge erred in stating that it was up to Brian to produce the original of Version 1, stating that Ms. Lewis was working with only photocopies and that “Brian did not call any evidence to explain why Ms. Lewis was not given the opportunity to inspect the original documents”: at para. 68. This comment is problematic for two reasons. First, it was Brenda who, as the propounder of the will, had the burden of proving its formal validity. Second, it was precisely the fact that she was unable to provide the original of Version 1 that gave rise to this issue of validity.

[45] In short, given the expert’s evidence which the trial judge misinterpreted but did not reject, the trial judge erred in finding that Brenda had discharged her onus of proving the formal validity of the will. As the signatures were “the same”, the absence of the original Version 1 was a serious problem which was not overcome by the other evidence, whose frailties were not addressed or arguably even appreciated by the trial judge in light of her misunderstanding of the expert’s opinion.

[46] For these reasons I am satisfied that Brenda did not meet her onus of establishing the formal validity of the will.

The Fresh Evidence

[47] Brenda seeks to introduce the original Version 2 of the will as fresh evidence on this appeal. She submits that the tests for the admission of fresh evidence in Palmer v. The Queen, 1979 SCC 8, [1980] 1 S.C.R. 759, at p. 775 and Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23, are met because the original Version 2 was not available at trial and could not be adduced with the exercise of due diligence, and it is necessary to deal fairly with the heart of the issue on appeal, which is the authenticity of Version 2 of the will.

[48] I disagree. The evidence does not meet the test for the admission of fresh evidence. The existence of the original Version 2 of the will is not likely to be conclusive of whether Version 2 of the will is valid. This is because it does not explain what happened to the original Version 1. Given Brian’s position that Version 2 was created by using the original Version 1, which did have Bruce’s original signature on it, and by having the two witnesses sign it, and the expert’s evidence that Bruce’s signatures in both versions are the same, the continuing absence of the original Version 1 (which Brenda claims exists somewhere) continues as a problem for Brenda. The validity of the original Version 2 of the will remains in question. This evidence is not necessary to deal fairly with the issues on appeal and declining to admit it would not result in a substantial injustice.

Disposition and Costs

[49] The appeal is allowed, the judgment below is set aside and the action is dismissed. The will dated August 15, 2013 is invalid. If the parties are unable to come to an agreement on costs, they may make written submissions not exceeding 5 pages, the appellant Brian within 10 days of the release of this decision and the respondent Brenda within 7 days after that.

Released: June 22, 2021 “D.D.” “A. Harvison Young J.A.” “I agree Doherty J.A.” “I agree I.V.B. Nordheimer J.A.”