ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 2008/1015
DATE: 2012-05-28

IN THE ESTATE OF INA BERYL LOGAN, DECEASED,
OF THE TOWNSHIP OF MCNAB/BRAESIDE,
IN THE COUNTY OF RENFREW.

BETWEEN:

CLAUDE BARR APPLICANT – and – HARRY BARR RESPONDENT

Peter Sengbush, for the Applicant
Scott Murray, for the Respondent

HEARD: May 23-25, 2012.

REASONS FOR DECISION

T.D. RAY, J

[ 1 ] This is the trial of the following issues concerning the Estate of the late Ina Beryl Logan:

a. Harry Barr affirms and Claude Barr denies that the deceased had testamentary capacity at the date of the execution of the will dated July 6, 2008.

b. Harry Barr affirms and Claude Barr denies that the deceased had had knowledge of and approved the contents of the will.

c. The issue concerning undue influence was abandoned at the opening of trial.

[ 2 ] Harry Barr and Claude Barr are brothers. They are 74 and 67 respectively. They grew up in Pakenham, being two of four boys. Following their father’s death in 1958, their Aunt Ina and Uncle Chris took on an active role with the boys. Their aunt, the Testator, Ina Beryl Logan, was born May 18, 1921. She died August 16, 2008 at the Arnprior Hospital from ‘natural causes’, after medical investigations and treatments for various ailments following severe arthritis, acetabular fracture and pneumonia. The Testator’s estate on her death was approximately $190,000. She had lived all of her life in Renfrew - about 30 km from Pakenham. Her husband had predeceased her some time before 1994, and she continued to live in the family home in Renfrew until August, 2006, when she sold her home. She had moved into a nearby retirement home the year before. The Testator had no children. Her sister’s four boys, which included Harry Barr and Claude Barr, had been the residual beneficiaries in a previous will but were changed by codicils and a will dated September 29, 2004, so that three of her nephews, including Harry Barr and Claude Barr were left as residual beneficiaries. The one boy had been excluded by virtue of the two codicils and the September will. He had died. The September 2004 will also removed Claude as an Executor, and only Harry remained. In the evening of July 6, 2008, the Testator executed a new will in which she named only Harry Barr and his wife Jean Barr as residual beneficiaries. Claude Barr was left out of the will. Claude Barr challenges this July 6, 2008 will on the ground of testamentary capacity, and takes the position that the 2004 will is the last valid will.

[ 3 ] A consent order for directions dated June 24, 2009, provided that each party was to serve and file an affidavit of documents, submit to examinations for discovery, and stipulated the exchange of relevant documentation to include medical documentation (the Testator), solicitor’s notes and records concerning the will, and financial records (the Testator), plus required the respondent to produce any prior wills including the will of September 29, 2004.

[ 4 ] The order for directions stipulated that no solicitor client privilege attached to matters as between the Testator and her solicitor.

[ 5 ] The respondent, the propounder of the July 6, 2008 will, led evidence concerning the Testator’s previous testamentary instruments, her dealings with her solicitor, and the beneficiaries from time to time including Harry Barr and Jean Barr, the sole beneficiaries in the July 2008 will. The applicant, who is challenging the will, led evidence concerning the medical history of the Testator up to the date of her death, and also the Testator’s relationship with Claude Barr.

[ 6 ] Mr. Crosby, a Renfrew solicitor, represented the Testator since approximately 1994 at which time he prepared a will on the Testator’s instructions naming Harry Barr, Bert Barr, Randy Barr, Claude Barr, and Sylvia Wasmunde as residual beneficiaries. Sylvia was a niece. The specific bequests were essentially household items of no appreciable value. A codicil dated January 10, 1995, changed the executor from Sylvia Wasmunde to Harry Barr and added Claude Barr as an alternate. A codicil dated March 5, 1996 deleted Sylvia Wasmunde as a beneficiary.

[ 7 ] On September 29, 2004, the Testator executed a new will which changed the executors by leaving Harry Barr as an executor, deleted Claude Barr as an alternate, and deleted Randy Barr as a beneficiary. The named residual beneficiaries were Harry Barr, Bert Barr, and Claude Barr. Mr. Crosby had written notes of his instructions and recalled that the will was executed at the Testator’s home or his office. He had no explanation for the fact that the executed will misnamed the Testator’s deceased husband.

[ 8 ] In August, 2006, Mr. Crosby acted for the Testator on the sale of her home in Renfrew. She had apparently moved into a retirement home nearby in 2005, and then sold her home the following year. Mr. Crosby believed that Harry Barr was to have looked after the house during that year. The proceeds from the sale were paid to the Testator ($89,000) and to Harry Barr ($2500). Mr. Crosby said he didn’t know why he had been instructed to pay Harry Barr $2500.

[ 9 ] Mr. Crosby said that on June 30, 2008, he received a telephone call from the Testator saying that she wanted to change her will so that Harry Barr and Jean Barr would get everything. She told him on the telephone that “they are the only ones that do anything for me”. Mr. Crosby prepared a draft will and intended to meet with her at the retirement home on July 8, 2008. However during the late afternoon of July 6, 2008, he received a telephone call from Harry Barr at his office to say that the Testator had been ill, had been in hospital, was back at her retirement home, and wanted to see Mr. Crosby urgently. Mr. Crosby’s note is that “Ina was failing and demanding that she call Duncan (Mr. Crosby)”. When Mr. Crosby told Harry Barr that he was going to see her on Tuesday, Harry Barr said she may not last that long. Mr. Crosby telephoned the Testator. He had no notes of that call; and recalled only that he told her he would see her later that evening.

[ 10 ] Mr. Crosby said he arrived at the Autumn Leaves retirement home around 7 p.m., Sunday, July 6, 2008, saw Harry Barr and Jean Barr in the lobby as they were leaving and was shown by a staff member to Ina’s room. Mr. Crosby said she was dressed and sitting up. He chatted with her for about an hour during the course of which he told her she looked quite well. She corrected him and said her health was not good. Mr. Crosby said she was lucid, consistent, not confused, quite aware of her surroundings and quite clear about the terms of the will – to leave everything to Harry and Jean Barr because they were the only ones who did anything for her. She also told Mr. Crosby that Claude Barr was a retired police officer with a good pension and didn’t need her money whereas Harry Barr was in his 70’s and still working. She told him that there would be a fight over her will as a result of her changing it. Mr. Crosby went over the will with her, she corrected the misnomer of her deceased husband in paragraph 6, and she signed it. He said that he had no reservations about the Testator’s capacity to give him instructions, and that she was very clear on what she wanted. She told him that she was managing her own affairs and paying her bills – and wrote Mr. Crosby a cheque for his fees. He recalled the Testator telling him that she expected to return to hospital for an appointment on the following Friday.

[ 11 ] Jean Barr, wife of the respondent, described her close relationship with the Testator over the years since she had met and married her husband in 1966. She saw the Testator approximately once per month over the years and at holidays. The Testator lived at Renfrew and Jean Barr and her husband lived at Pakenham, a distance of approximately 30 km. She recalled that in 1994, one of the Testator’s sisters (Ada Gibson) died. Shortly afterwards in 1995, Ms. Gibson’s husband, Chris Gibson died. He left half his estate to the Testator’s husband who had also died in 1994, so that the share actually went to the Testator. She believed that it was approximately $80,000. Jean Barr said that the Testator managed her own investments including the inheritance. She recalled knowing that after the Testator sold her house, the proceeds were also invested by the Testator, and the total was approximately $180,000. She was aware of the Testator’s will in 1994. And later became aware of the 2004 will after the Testator told her. The Testator told her that she removed Randy Barr from the will because he had died, leaving Harry and his two brothers as residual beneficiaries. Harry was the named executor and Claude had been removed.

[ 12 ] Jean Barr said that in late 2007 or early 2008, the Testator told her that she was thinking of changing her will and wanted her and Harry ‘to be in charge’. Her evidence was that the Testator made that comment at least two or three times but that she never actually addressed how she intended to leave her estate in her will.

[ 13 ] Harry Barr’s evidence was that he had had a close relationship with the Testator all of his life. He is and was a sawmill operator in Pakenham. The four Barr boys were the favourite nephews of the Testator. There were lots of visitations back and forth between her home in Renfrew and their home in Pakenham. After the Testator’s husband (Uncle Chris) died in 1993, the frequency of the visits increased. At no time had he ever had discussions with the Testator about her will intentions. He said he was aware of the 2004 will in which he was named executor because she asked him if he would accept the appointment. He was aware of being appointed her power of attorney for property and personal matters at the time as well. Mr. Barr recalled that the Testator’s physical health began to fail starting in 2004 but she remained mentally sharp. Her physical ailments included arthritis and high blood pressure. After she moved into the retirement home, she relied on Harry Barr and Jean Barr to pick up prescriptions, personal items, and banking deposits from time to time. She paid Mr. Barr $100 per month, and $200 at Christmas. In the late spring of 2008, the Testator told him she intended to call Duncan Crosby to change her will. She told Mr. Barr after her telephone call of June 30, 2008 that she had called him, but not what changes she intended to make. He noted that while the Testator’s hearing was very bad, it was fine if she was wearing her hearing aid. He also noted that throughout, she showed no signs of confusion or mental deterioration. He was aware that she had been in hospital during the week before; and on Sunday morning, July 6, 2008, during one of their regular visits to the Testator at the retirement home, the Testator instructed him to call Mr. Crosby to ask that he come to see her right away. She told Mr. Barr that she thought she was dying. Mr. Barr telephoned Mr. Crosby and passed along the message from the Testator. Mr. Crosby told him that he had planned on seeing her on Tuesday July 8, but Mr. Barr told Mr. Crosby that she wanted to see him right away. Mr. Crosby told him that he would see the Testator at the retirement home at 7 p.m. Harry and Jean Barr left for home but returned around 6:30 because the Testator asked them to. He recalled Mr. Crosby arriving, asking that they leave the room with him alone with the Testator. He closed the door. After Mr. Crosby left, they both returned to see her. The Testator told them “ You are both in charge now ” – without further comment. She later said “ get ready – you’re going to have trouble with your mother (her sister) and your two brothers ”. Mr. Barr said that neither his mother nor his two brothers have spoken to him since the Testator’s death. In cross-examination, Mr. Barr denied ever telling the Testator that he was hard up. She knew that he was working and that he liked to work.

[ 14 ] Claude Barr is 67 years of age and is a retired police officer. He grew up in the family home in Pakenham with three brothers including Harry; and left home on September 1, 1963 at age 18. His father had died in 1958. First he lived in Toronto and then in London. He travelled home to Pakenham from to time to visit his mother and most times visited his aunt Ina, the Testator, in Renfrew. He said that he began to visit infrequently after his health interfered with his ability to withstand the long drives in recent years. The last time he saw the Testator in person was in June 2006, at the time of the auction of the Testator’s household contents after her house sale. He said he would telephone her approximately once a month, and sent Christmas, Easter, and a Birthday card each year. He didn’t know when the Testator’s birthday was because it was his wife who looked after the cards.

[ 15 ] Mr. Barr said that the last time he spoke to the Testator on the telephone before her death in August 2008, was in early June. He telephoned her. She told him that she didn’t recognize his voice and didn’t know who he was. He said she did not seem to be herself. The telephone call before that was in January, 2008. Mr. Barr said that during that call, she seemed more argumentative, and said “outlandish things”. His example was that she told him that robins stay around all year round. Before 2008, according to him, the Testator would ask him his advice concerning investments from time to time during their telephone calls; the last was in 2006. Mr. Barr was aware at the time that he had been removed as a power of attorney in 2004. He said that the Testator told him that in her 2004 will she was leaving everything to him (Claude), Harry, and Bert (in Nfld.) – and that Harry was the executor.

[ 16 ] Two volumes of medical and hospital records were filed by the applicant. The relevant portions show as follows:

The Saturday, July 5, 2008 hospital note shows that she was well enough to return home – and that she should return July 9, 2008 for further tests.

On Wednesday, July 9, 2008, the Testator was not only examined again but was admitted as an inpatient. Morphine was administered for pain. Congestive heart failure was ruled out, and she was treated for pneumonia. The notes observe that “she seems lucid”, “might be getting a little forgetful with her medications”, and “disoriented?”.

A note on July 10, 2008 says “more alert today”.

A note on July 14, 2008 reports “difficulty assess pain – as pt denies (it is) present”, and “denies discomfort”

A note on July 15, 2008 shows “falling asleep mid sentence”, and “poor historian”. Also that date “Pt complaining re pain – neck – hip pain”. Morphine was continued.

By July 17, 2008, the notes record “(patient) I don’t know what to do or what I’m to do. I’m confused.”

This same comment is repeated in the notes for July 21, 2008.

The Testator was discharged back to the retirement home July 23, 2008. The discharge note describes that she had been treated for pneumonia, and arthritic pain; and that she was up and walking as much as she had prior to her admission.

A later admission August 6, 2008 shows that she had deteriorated physically; and mentally confused and disoriented. The Testator died ten days later.

ANALYSIS

[ 17 ] The law concerning capacity to execute a will presumes that a testator has the requisite testamentary capacity. That presumption may be displaced however where it can be shown on a balance of probabilities that there are suspicious circumstances, in which case the burden moves back to the propounder of the will to show that the testator had knowledge of and approved the contents. The burden on the propounder is commensurate with the level or degree of the suspicion. ( Vout v. Hay, 1995 105 (SCC), [1995] 2 SCR 876, (SCC), Scott v. Cousins [2001] O.J. No. 19 (SCJ) ).

[ 18 ] The law as to the procedure when suspicious circumstances are contended is summarized as follows in Schnurr, Estate Litigation, 2002 release, Book, page 2-5:

....when considering whether or not suspicious circumstances are present the court looks at a number of factors:

(1) The extent of physical and mental impairment of the testator around the time the will was signed;

(2) Whether the will in question constituted a significant change from the former will;

(3) Whether the will in question generally seems to make testamentary sense;

(4) The factual circumstances surrounding the execution of the will;

(5) Whether a beneficiary was instrumental in the preparation of the will.

Physical And Mental Impairment Of The Testator

[ 19 ] The physical and mental impairment of the Testator at the time of the will is fairly clear. She was in hospital the day before the will was signed and again returned to hospital several days after the will was signed. The hospital records for the period describe the Testator’s physical and mental condition. The solicitor, Mr. Crosby described the immediate circumstances of the signing of the will. Mr. Harry Barr and Mrs. Jean Barr were around during the immediate period. While the Testator was physically impaired by reason of arthritis, pneumonia and possible congestive heart failure, there is nothing in the medical records of July 5, 2008 to suggest any mental impairment. I don’t accept the respondent’s submissions that because Jean Barr signed the consent to treatment on July 5, 2008, that therefore the Testator must be taken to have lacked capacity in accordance with the Health Care Consent Act , 1996. Jean Barr’s explanation was that the RNA who asked her to sign the form had been struggling to help the Testator get her clothing off. I accept that explanation. I don’t accept that the evidence allows an inference to be drawn that the RNA made a judgment about the Testator’s mental capacity.

[ 20 ] The Testator’s admission on July 9, 2008 shows her to have been lucid, forgetful regarding her medications and possibly disoriented on one occasion. Later, during her admission while she was being treated for pain for her arthritis with morphine, further confusion and disorientation by the Testator was noted. When she was discharged on July 23, 2008 she was back to her pre-admission physical level.

[ 21 ] Mr. Crosby was clear that the Testator fully understood what she was signing. Although the Testator apparently misstated to him the value of the estate by some $80,000.

[ 22 ] The evidence of Claude Barr concerning a telephone call with the Testator in January 2008, and the further and final telephone call in June 2008 does raise questions. However, on the basis of only these phone calls it is very difficult to draw any inferences. The January call may have been confusion – or perhaps she had read something that suggested robins are now tending to winter over in Canada. The June telephone call when she didn’t recognize his voice may simply have been that the Testator was not wearing her hearing aid and could not hear him. What is more telling is that Claude Barr only spoke to her twice in 2008, before she died. Had he telephoned her every month as he claimed, then his evidence might have been of more assistance. There is no evidence that he was concerned enough to telephone the retirement home authorities, her medical care practitioner, or even to call his brother Harry to express his concerns. His evidence that she didn’t seem herself is therefore of dubious value.

[ 23 ] There is simply insufficient evidence of mental impairment around the time of the Testator signing her will.

Whether The Will In Question Constituted A Significant Change

[ 24 ] The terms of the will were undoubtedly a significant change. Previous testamentary documents were in favour of all brothers who were living. The July 6, 2008 will was a significant change in that it deleted two of the three remaining brothers as residual beneficiaries. Of note is that she had already removed Claude Barr as an executor four years earlier.

Whether The Will In Question Generally Seems To Make Testamentary Sense

[ 25 ] The testamentary sense of the will should be examined through the lens of the Testator, otherwise it would admit of others making testamentary decisions for her. That examination requires an examination of the veracity of the Testator’s lens. She told her solicitor that it was only Harry Barr and Jean Barr that had ever done anything for her. That was apparently factually correct. There was no evidence that the brother living in Newfoundland had had any contact with the Testator in recent times, and no evidence of any visits. The remaining brother, Claude saw the Testator for the last time in 2006 when she sold her house. Notwithstanding his evidence that he spoke to his Aunt every month, we know for a fact that he only spoke to her twice on the telephone in 2008 up to the time of her death. His wife sent three cards a year to the Testator. Clearly Harry Barr and Jean Barr were the only ones who were doing anything for her—which was her stated reason for changing the will.

[ 26 ] I am satisfied that generally the will made sense.

The Factual Circumstances Surrounding The Execution Of The Will

[ 27 ] I was impressed with Mr. Crosby’s evidence. He is an experienced solicitor. Wills occupy approximately 20% of his practice. He followed his usual practice in reviewing the will with the Testator. He kept careful notes of instructions from the Testator. He was clearly alive at the time to issues of her mental capacity and purposely spent a full hour with her discussing myriad subjects so that he could satisfy himself she had the capacity to execute the will. The terms of the will that she executed were consistent with instructions the Testator had given him by telephone a week earlier. He noted for example that during her review of the will but prior to signing, she corrected Mr. Crosby’s error in misnaming her deceased husband. Furthermore, she was managing her own affairs and in fact wrote him a cheque for his fees at the time. Comments to Harry Barr and Jean Barr after she executed the will that Claude Barr and his mother would be unhappy with her change to the will confirmed that she understood (and perhaps correctly anticipated) the consequences of deleting Claude Barr and his brother as residual beneficiaries.

[ 28 ] I am satisfied that the factual circumstances surrounding the signing of the will raise no particular concerns.

[ 29 ] The fifth factor need not be examined since there is no suggestion that the beneficiaries were instrumental in the preparation of the will.

CONCLUSION

[ 30 ] Having considered the evidence in light of the four relevant factors, I am satisfied that the propounder, Harry Barr, has demonstrated on a balance of probabilities that the Testator had testamentary capacity when she executed her will of July 6, 2008.

[ 31 ] I therefore find as follows:

a. The deceased had testamentary capacity at the date of the execution of the will of July 6, 2008; and

b. The deceased had knowledge of and approved the contents of the will.

[ 32 ] The parties did not file costs outlines at the conclusion of argument. If the parties cannot agree on costs, they may make written submissions of two pages or less to my chambers in Ottawa within 14 days, and with a further 7 days for reply.

Honourable Justice Timothy Ray

Released: May 28, 2012

COURT FILE NO.: 2008/1015
DATE: 2012-05-28

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CLAUDE BARR APPLICANT – and – HARRY BARR RESPONDENT REASONS FOR JUDGEMENT Honourable Justice Timothy Ray

Released: May 28, 2012