COURT FILE NO.: 242/09

DATE: 2012-05-30

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: THE GOVERNING COUNCIL OF THE SALVATION ARMY IN CANADA, Applicant

AND:

CATHERINE COLES-LECUYER, CYNTHIA LUBBERTS, CHARLOTTE AINDOW, CHRISTINE MCINNIS, WOODSTOCK GENERAL HOSPITAL, GARY BROWN, HEATHER BROWN, THE WAR AMPS, VON WOODSTOCK and VON OXFORD, Respondents

BEFORE: MITROW J.

COUNSEL: Susan Easterbrook, for the Applicant Jo-Ann Hanson, for the Respondents, Catherine Coles-Lecuyer, Cynthia Lubberts, Charlotte Aindow and Christine McInnis

HEARD: February 17, 2012 and written submissions on March 22, 2012

ENDORSEMENT

Issue

[1] The applicant brings a motion for summary judgment pursuant to Rules 20 and 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking an order that the will of Gordon Earl Coles (the “deceased”) dated March 19, 2003 has been proved, and that a copy of this will shall be admitted to probate.

[2] The original signed will has not been found.

[3] The deceased’s four daughters, who are also respondents, rely on the rebuttable presumption of revocation arising from the lost will. This brings into play the following three main issues:

a) Does the presumption of revocation arising from a lost will apply?

b) If so, has the presumption been rebutted?

c) If the presumption is rebutted, is the lawyer’s copy of the will admissible to probate as the Last Will and Testament of the deceased?

[4] If the copy of the will is admitted to probate, the applicants also seek the advice, opinion and direction of the court as to whether “VON Oxford” located in Woodstock, Ontario is one of the intended residual beneficiaries listed in the will.

[5] On a procedural basis it is necessary to determine whether it is appropriate to deal with this case on a final basis by way of summary judgment.

The Parties

[6] The applicant, the Governing Council of the Salvation Army in Canada is one of the residual beneficiaries named in the deceased’s will.

[7] The respondents, Catherine Coles-Lecuyer (“Ms. Coles-Lecuyer”), Cynthia Lubberts (“Ms. Lubberts”), Charlotte Aindow (“Ms. Aindow”) and Christine McInnis (“Ms. McInnis”) are the deceased’s four daughters (sometimes collectively referred to as (the “respondent daughters”).

[8] The respondent, Gary Brown (“Mr. Brown”) is named as Executor and Trustee of the deceased’s will, and Mr. Brown along with Heather Brown (“Ms. Brown”) are residual beneficiaries. Although Mr. Brown signed an affidavit for the applicant, he did not appear at the motion.

[9] The remaining respondents, namely VON Woodstock, the War Amps and Woodstock General Hospital are also residual beneficiaries. VON Oxford was included as a respondent as the Court is being asked to determine whether this was an intended beneficiary. None of these parties appeared on the motion.

Procedural Issues

[10] Rules 75.02 and 75.06 are relevant and provide as follows:

PROOF OF LOST OR DESTROYED WILL

75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application,

a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or

b) in the manner provided by the court in an order giving directions made under rule 75.06. O. Reg. 484/94, s. 12.

APPLICATION OR MOTION FOR DIRECTIONS

75.06 (1) Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 18 (1)

Service

(2) An application for directions (Form 75.5) or motion for directions (Form 75.6) shall be served on all persons appearing to have a financial interest in the estate, or as the court directs, at least 10 days before the hearing of the application or motion. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 18 (2).

Order

(3) On an application or motion for directions, the court may direct,

a) the issues to be decided;

b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;

c) who shall be served with the order for directions, and the method and times of service;

d) procedures for bringing the matter before the court in a summary fashion, where appropriate;

e) that the plaintiff file and serve a statement of claim (Form 75.7);

f) that an estate trustee be appointed during litigation, and file such security as the court directs;

f.1) that a mediation session be conducted under rule 75.1;

g) such other procedures as are just. O. Reg. 484/94, s. 12; O. Reg. 290/99, s. 1.

(4) An order giving directions shall be in Form 75.8 or 75.9. O. Reg. 484/94, s. 12.

[11] Early on in this case, Hockin J. made an order for directions dated March 5, 2010 which included provisions for disclosure (including examinations for discovery), naming Charles Dunphy (“Mr. Dunphy”), a solicitor, as Estate Trustee During Litigation, directing a trial of the issues, requiring the parties to conduct a mediation in accordance with Rule 75.1 and providing that any party is at liberty to seek further orders for directions from the court.

[12] The recent amendments to Rule 20 in relation to summary judgment include the following:

20.04 (2) The court shall grant summary judgment if,

a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).

20.04 (2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13(3).

[13] In relation to the order for directions, the applicant submits (and the respondent daughters do not dispute), and I find, that a motion for summary judgment, after an order for trial of an issue, is procedurally available.[^1]

[14] In its recent decision in Combined Air Mechanical Services Inc. v. Flesch[^2], on the availability of summary judgment pursuant to r. 20, taking into account the recent amendment, the Court of Appeal identified three types of cases[^3] where it is appropriate to determine an action by way of a motion for summary judgment:

a) Where the parties agree it is appropriate to determine an action by way of a motion for summary judgment and the court is satisfied it is appropriate to grant summary judgment (See r. 20.04 (2)(b));

b) Where the claims or defences are shown to be without merit; and

c) Where the court is satisfied there is no genuine issue requiring a trial having regard to the enhanced powers under Rules 20.04 (2.1) and (2.2) unless the court finds it is in the interest of justice for such powers to be exercised only at a trial.

[15] In relation to the third type of case, the Court of Appeal instructed that the motion judge should ask the following question[^4]:

Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment or can this full appreciation only be achieved by way of a trial?

[16] At the conclusion of oral argument on the summary judgment motion on February 17, 2012, and considering the mediation provision in the order for directions and considering that no mediation had occurred, I invited counsel to advise whether they wished an opportunity to explore settlement before I undertook the process of rendering judgment. Both counsel expressed a desire for an opportunity to explore resolution. On March 19, 2012, I released an endorsement requesting brief written submissions in letter form from counsel whether this matter was resolved, and if not, whether counsel were requesting further time. In response to this endorsement, Ms. Hanson and Ms. Easterbrook each forwarded a brief letter dated March 22, 2012 advising that the parties were unable to settle this matter and each requested the court to render a decision.

[17] The evidence in this case was brief and reasonably straight forward. Most of the affidavit evidence was prepared and served after the order for directions. No oral examinations were conducted.

[18] I am satisfied that it is appropriate to proceed by motion for summary judgment applying the principles in Ettore Estate and Slater Estate[^5] and for reasons which include the following:

a) During oral argument both counsel requested the court to make a final decision on the record before the court on the summary judgment motion and not to order the matter to proceed to trial;

b) The record comprising the motion material is brief and not complicated;

c) I have considered the general principle and the proportionality principle in Rules 1.04 (1) and (1.1);

d) In applying the principles[^6] discussed by the Court of Appeal as to whether “the full appreciation test” is met, I find that the attributes of the trial process, including hearing the witnesses, are not necessary to fully appreciate the evidence, and for reasons which are set out in more detail below, I further find there is no genuine issue requiring a trial and that it is not necessary in the interest of justice to conduct a trial.

The Evidence

[19] The deceased died on December 31, 2008. He was divorced and lived alone in his house in Woodstock, Ontario. Mr. Gary McQuaid, a Woodstock lawyer, deposed that on or about March 5, 2003, he was retained by the deceased to prepare a will and that pursuant to the deceased’s instructions the will was prepared and executed in Mr. McQuaid’s office on March 19, 2003. The will was witnessed by Mr. McQuaid and his legal secretary, Sheri Major (“Ms. Major”), the latter not filing an affidavit on this motion.

[20] On the same day, the deceased also signed a power of attorney for property and personal care which was also witnessed by Mr. McQuaid and Ms. Major.

[21] The copy of the will appended as an Exhibit to Mr. McQuaid’s affidavit is an office copy of the original with the date in March 2003 written in and with the names of the deceased and the witnesses, and the witnesses’ addresses, handwritten in quotation marks (in other words, the exhibit is not a photocopy of the original executed will). The power of attorney appended to Mr. McQuaid’s affidavit is a photocopy of the signed original.

[22] Mr. McQuaid further deposed that when the deceased left Mr. McQuaid’s office on the day the will and power of attorney were signed, the deceased took both of those original documents with him.

[23] It is Mr. McQuaid’s evidence that the deceased had been a client of his as at that time in excess of three years, and that Mr. McQuaid had prepared a previous will and power of attorney for the deceased in 2000 and that the deceased had not contacted Mr. McQuaid subsequent to the execution of his March 19, 2003 will to advise of an intention to revoke or make changes to his will. No evidence was led as to the contents of the deceased’s prior will and power of attorney executed in 2000.

[24] The deceased’s will, after providing for some specific bequests regarding Canada Savings Bonds, dealt with the residue of his estate as follows:

a) 40% to the Woodstock General Hospital;

b) 30% to the applicant;

c) 10% to War Amps;

d) 10% to VON Woodstock; and

e) 10% to Gary and Heather Brown.

[25] Mr. Brown, in addition to being named as Executor and Trustee was also named in the power of attorney as the attorney for both property and personal care.

[26] Mr. Brown deposed he was a close friend of the deceased having met him approximately 16 years ago and over the last five years having spent more time with him including driving him to go shopping, to the bank and to medical appointments.

[27] It was Mr. Brown’s evidence that the deceased did not want any contact with his four daughters “during his life”, that he refused to respond to any letters received from his daughters and that the deceased “was adamant throughout the years of our friendship that he did not want me to contact his daughters on his death”.

[28] While the deceased was hospitalized a couple of months prior to his death, it was Mr. Brown’s evidence that the deceased did not want his daughters contacted. Mr. Brown deposed he had specifically asked the deceased about that. Mr. Brown further deposed that he was listed as next of kin and the contact person in the deceased’s hospital file. However, no evidence was tendered from the hospital file corroborating this information.

[29] Mr. Brown claimed over the past five years he was not aware that the deceased’s daughters had ever visited the deceased because the deceased never spoke about them.

[30] It was Mr. Brown’s further evidence that around the time the deceased had been to Mr. McQuaid’s office to have his will prepared, that Mr. Brown did not want to be the executor and he tried to convince the deceased to appoint his family in that capacity. However, Mr. Brown deposed that he finally relented and agreed to act as executor given the deceased’s insistence that his daughters were not to be involved as executors or beneficiaries.

[31] Mr. Brown described the deceased as a “packrat” who collected “cereal box tops, magazines, newspapers and many other items”. He deposed that some of the rooms in the deceased’s house “are stacked to the ceilings with his collections”. Mr. Brown tried to look in the most obvious places where he thought the original will could be, however, he could not locate it, although he did find the original power of attorney for property and personal care executed by the deceased at the same time as his will. Mr. Brown described the power of attorney as being “in the safe” and thought it unusual that the will was not there.

[32] Mr. Brown deposed that it would take a substantial amount of time to sort through the clutter in the deceased’s home to try and find the will and he felt that he did not have the authority to continue the search given the court application.

[33] The affidavits in support of the applicant’s motion consisted of the two affidavits from Mr. Brown and Mr. McQuaid.

[34] The material filed on behalf of the respondent daughters consisted of affidavits from three of the daughters. There was no affidavit from Ms. Aindow.

[35] Ms. Coles-Lecuyer resides in Edmonton, Alberta. It appears that her first affidavit sworn January 27, 2010 may have been prepared without the benefit of counsel. Ms. Coles-Lecuyer filed a second affidavit sworn July 26, 2011 prepared by counsel and this affidavit repeats much of the information contained in the first affidavit.

[36] Ms. Coles-Lecuyer’s affidavits corroborate Mr. Brown’s affidavit in one material aspect. She deposes her father (the deceased) was “an absolute fanatic about keeping things and not throwing anything out”. She describes him as a hoarder keeping everything he thought to be of value or worth to him. According to Ms. Coles-Lecuyer her father would drive around and collect other people’s discarded items. Ms. Coles-Lecuyer appends to her affidavit as an exhibit the inventory of assets prepared by Mr. Dunphy which includes the following description of the deceased’s residence (which sold for $93,000.00): “...infected with mice, contains approx. 4 tons of hoarded/contaminated items with no realizable value...” [my emphasis].

[37] Ms. Coles-Lecuyer deposes her father “always” talked about his will when she would visit. However, Ms. Coles-Lecuyer fails to mention when these visits occurred. Ms. Coles-Lecuyer does say her father had “esophageal cancer and lung cancer”, that he had been hospitalized for “a triple bypass and several heart attacks between 1984 and 1999”. It was Ms. Coles-Lecuyer’s evidence that she accompanied her father to the hospital during those years and cared for him when he returned.

[38] Ms. Coles-Lecuyer further deposes that her father advised her she was the executrix of his will and then he gave her business cards of his lawyer, doctor, his bank and insurance company. Ms. Coles-Lecuyer, however, fails to give any time frame when these cards were received. The business cards are appended to her first affidavit as an exhibit but the exhibit was not sworn. However, this first affidavit did mention Mr. McQuaid as being her father’s lawyer. Ms. Coles-Lecuyer states her father took her to Mr. McQuaid’s office and introduced her to the staff. There is no indication in her two affidavits when this occurred.

[39] According to Ms. Coles-Lecuyer her father told her on a visit “the daughter with the highest pile of letters sent to him would inherit the most”. There is no specific indication when this statement was made. Ms. Coles-Lecuyer states her father “always stored his valuable papers in a steel filing box”.

[40] Ms. McInnis resides in Kitimat, British Columbia. She too corroborates her father was a “hoarder”. She deposes that when she would visit her father he would always bring up the subject of his will as if he was making a new one, that he would laugh and say he was doing his will in pencil. However, Ms. McInnis fails to provide any evidence as to a specific time when those visits occurred.

[41] Ms. Lubberts resides in St. Catherines, Ontario having lived there since in or about 1994. She deposed she visited her father from 1994 to approximately 2008 “as often as I could”.

[42] Ms. Lubberts deposes that she never met Mr. Brown nor Ms. Brown nor did she ever hear her father speak of them. She too confirmed her father was passionate about keeping things and not throwing them out.

[43] In relation to the deceased’s will and power of attorney, Ms. Lubberts deposes that at “times during my visits”, her father would discuss his will and power of attorney, that “he could not seem to make up his mind if he wanted to me to act for him or my sister, Catherine”. Ms. Lubberts does not give any specific time frame as to when these discussions occurred.

[44] It was also Ms. Lubberts’ evidence that Mr. Brown had a key to her father’s home as well as the access code, as he had let her and her sister into the house.

[45] It is common ground between counsel that if the deceased’s will is treated as revoked, then the respondent daughters are entitled to the residue of the estate on an intestacy.

[46] Ms. Lubbert’s affidavit included an exhibit consisting of a letter from Mr. Dunphy referring to some handwritten notes Mr. Dunphy found in an envelope marked “Will and Estate information”, the “most interesting” of which Mr. Dunphy appended to his letter. This note lists the names of the deceased’s four daughters and various grandchildren with a percentage beside each name. Ms. Lubberts submits this shows an intention by the deceased to distribute his estate to his children and grandchildren.

[47] Mr. Dunphy did not file an affidavit. Although no apparent objection was taken by the applicant regarding the admissibility of this note, it is apparent this note is undated, and further, there is no evidence as to when this note may have been created.

[48] The gross value of the deceased’s Estate was shown to be a little over $233,000.00 and according to Mr. Dunphy’s letter to which no objection as to admissibility was taken, all assets of the estate had been liquidated and the estate consists of $155,000.00 as of the date of the letter (being June 11, 2011) subject to four Canada Savings Bonds which cannot be located but in respect of which an application has been made to the Bank of Canada.

The Law

[49] The legal principles applicable to this case are not in dispute. The rebuttable presumption that a lost will in the possession of the testator (or testatrix) has been destroyed by a testator (or testatrix) with the intention of revoking it, is stated by Cockburn, C.J. in the often quoted Court of Appeal decision in England in Sugden v. (Lord) St. Leonard’s (1876) 1 P.D. 154 (C.A.) at pp. 217-218 as follows:

Now, where a will is shewn to have been in the custody of a testator, and is not found at his death, the well-known presumption arises that the will has been destroyed by the testator for the purpose of revoking it, but of course that presumption may be rebutted by the facts. Although presumptio juris, it is not presumptio de jure, and of course the presumption will be more or less strong according to the character of the custody which the testator had over the will.

[50] This principle as stated in Sugden has been applied by the Supreme Court of Canada in Lefebvre v. Major, 1930 4 (SCC), [1930] S.C.R. 252 at p. 257 and other cases[^7].

[51] As stated in Sugden, the presumption will be “more or less strong” depending on the nature of the testator’s custody over the will, with the presumption being stronger where a testator placed the will in a safety deposit box or similar secure location[^8].

[52] In determining whether a lost will has been destroyed by a testator, with the intention to revoke it, the Court may consider a number of circumstances such as:

…the character of the testator and his relation to the beneficiaries, the contents of the instrument, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator.[^9]

[53] In Burgar v. Burgar[^10], the evidence necessary to rebut the presumption was stated as follows:

[16] If a will traced into the possession of a testator is not found at the testator’s death, there is an initial presumption that the testator destroyed the will with the intention of revoking it, in the absence of circumstances tending to a contrary conclusion. The evidence rebutting the presumption must be clear and satisfactory. The evidence may comprise actions or words of the testator while living. It may also be inferred from the reasonableness of the dispositions in the will in the known circumstances of the testator’s relationships with family and others. The possibility that the will was destroyed without the knowledge or consent of the testator while living or after death may also be taken into account. In the context of such cases, the burden of rebutting the presumption of revocation will normally rest on the parties relying on the Will. In this case, they would be the executors, Robert and Edward Burgar.

[54] There is no dispute in the present case that the burden of rebutting the presumption falls to the applicant.

[55] The evidence of each party as to any matter occurring prior to the deceased’s death must be corroborated by “some other material evidence”. This requirement arises from s. 13 of the Evidence Act, R.S.O. 1990, c.E.23, as amended, which states:

s. 13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[56] As stated by the Ontario Court of Appeal in Riordan v. Mellon, 2000 5739 (ON CA), 48 OR (3d) 641; 188 DLR (4th) 665; 133 OAC 83:

[5] …Section 13 addresses the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the living’s version of events. [footnote omitted]

[57] In Riordan, the nature of the corroborating evidence was described as follows:

[29] ….The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence or several pieces considered cumulatively. [footnote omitted]….

[58] In Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al, 2011 ONSC 3043, the following helpful discussion is found regarding s. 13 and the nature of the corroborating evidence:

[14] Accordingly, neither Elaine nor Sharon can succeed in their attempt to validate or invalidate their mother’s 2004 Wills and Codicil by virtue of their own, uncorroborated evidence: Smith Estate v. Rotstein (2010), 2010 ONSC 2117, 56 E.T.R. (3d) 216 (Ont. S.C.).

[15] Section 13 of the Evidence Act requires that there be corroboration of material facts alleged by an opposite or adverse party of any matter occurring before the death of a testator. This requirement exists to address the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings’ version of events: Burns Estate v. Mellon 2000 5739 (ON CA), (2000), 48 O.R. (3d) 641 (C.A.).

[16] Not every particular of the party’s evidence need be corroborated but the material evidence in corroboration must be independent of the opposite or adverse party and must appreciably help the judicial mind to accept one or more of the material facts deposed to. It must materially enhance the probability of the truth of the adverse party’s statement.

[17] In this case, of course, s. 13 applies equally to both Sharon and to Elaine. There is, for example, ample corroboration for Elaine’s evidence that Bessie said she was unhappy with Sharon, felt that they had little or no relationship and specifically articulated this as one of the reasons for treating Sharon less favorably than Elaine in her will planning. There is, however, no corroboration for Sharon’s assertion that she and Bessie met “secretly” and enjoyed an excellent relationship. Accordingly, I am required by s. 13 to disavow Sharon’s evidence on this point in assessing any verdict, judgment or decision affecting her.

Position of the Parties

[59] The applicant submits that if the presumption applies, then on the evidence the applicant has rebutted the presumption. The applicant points to evidence including the evidence of Mr. Brown, that the deceased wanted to exclude his daughters from sharing in his estate, the evidence of Mr. McQuaid as to proof of the contents of the will, the evidence that the deceased’s lawyer was Mr. McQuaid and that the deceased did not contact Mr. McQuaid to change his will.

[60] The respondent daughters submit that the presumption has not been rebutted. They submit that the deceased made statements to some of the daughters about the contents of his will, they rely on the note attached to Mr. Dunphy’s letter as some evidence that the deceased intended to leave his estate to his children and grandchildren and they urge the court to find that the deceased must have destroyed his will with the intention of revoking it given that the will was not found with the power of attorney.

Discussion

[61] Two matters can be briefly dispensed with. First, is the applicability of the presumption. The evidence is clear that the deceased took the will into his possession on leaving Mr. McQuaid’s office. The deceased lived alone. Assuming Mr. Brown may have had access to the deceased’s home, it is Mr. Brown’s evidence that he searched the deceased’s home and was unable to locate the will. There was no evidence, nor indeed any suggestion, that Mr. Brown took the will. The evidence establishes, and I find, that the deceased had possession of his will immediately after it was executed. There is no evidence before the Court which can support a conclusion that the will was ever in the possession of someone other than the deceased, and as the will cannot be located, the rebuttable presumption applies that the deceased destroyed his will with the intention of revoking it.

[62] The second matter is proof of the contents of the will. No serious challenge, if any, was raised by the respondent daughters as to the contents of the will executed at Mr. McQuaid’s office. There was no challenge to Mr. McQuaid’s evidence. I am satisfied that the contents of the will executed by the deceased are the same as the copy of the will attached as an exhibit to Mr. McQuaid’s affidavit.

[63] This leaves the remaining issue as to whether the applicant has met the onus of rebutting the presumption that the deceased destroyed the will animo revocandi.

[64] There is one very cogent fact that is not in dispute. The applicant and the respondent daughters all agree, and indeed these opposing parties corroborate each other, that the deceased was an insatiable and fanatical hoarder of just about everything he possessed throughout his life. The description by Mr. Brown referring to some rooms in the deceased’s house being “stacked to the ceilings” coupled with the reference to “four tons of hoarded, contaminated items of non-realizable value” in the inventory of assets, suggests that the deceased, who it seems never destroyed or threw anything out including cereal box tops, would be most unlikely to destroy a will.

[65] I reject the respondent daughters’ submissions that the deceased’s obsessive hoarding, coupled with the fact that the deceased’s will was not found (whereas the power of attorney which was executed at the same time was found), supports a conclusion that the deceased must have destroyed the will. It is necessary to examine the possibility that the loss of the will may be accounted for other than by its intentional destruction by the deceased. On the facts of this case, a much more likely and reasonable explanation is that the will was somewhere amongst the “four tons” of hoarded clutter.

[66] There is other evidence corroborating it was unlikely the deceased intentionally destroyed his will. He was an acknowledged client of Mr. McQuaid’s. The deceased previously executed a will and power of attorney prepared by Mr. McQuaid in 2000 and then returned in 2003 to execute the current will together with a new power of attorney. Mr. McQuaid was of the belief that the deceased would have contacted him regarding an intention to revoke or change his will. I find that Mr. McQuaid’s belief is corroborated by the deceased’s daughter, Ms. Coles-Lecuyer, when she deposed that the deceased took her to “his lawyer”, Mr. McQuaid’s office, and introduced her to Mr. McQuaid’s staff. This demonstrates that the deceased placed importance in his solicitor-client relationship with Mr. McQuaid to the point of taking his daughter to Mr. McQuaid’s office, and it would have been inconsistent for the deceased to embark on a revocation or alteration of his will without prior consultation with Mr. McQuaid.

[67] Ms. Coles-Lecuyer’s evidence that her father talked about his will whenever she would “visit”, that during various visits her father told her she was the executrix, and that on other visits her father made statements suggesting he had named a grandchild or one of Ms. Coles-Lecuyer’s sisters as an executrix, and on yet another visit, stating that the daughter with “the highest pile of letters sent” would inherit the most, are all statements which are not corroborated as required by s. 13. However, if I am wrong and those statements are sufficiently corroborated, and are otherwise admissible, I find those statements are of little weight because there is no specific time frame as to when the statements were made other than the general timeframe of 1984-1999 during which time Ms. Coles-Lecuyer said she would visit her father to assist him after various surgeries and to provide him with care.

[68] The evidence of Ms. McInnis is vague and of little assistance. She refers to her visits with her father but provides absolutely no time frame. The statements alleged to be made to her by her father are not corroborated as required by s. 13, but even if they were corroborated and are otherwise admissible, the statements are of marginal relevance deserving of little or no weight.

[69] Ms. Lubberts’ evidence as to her father’s statements discussing his will and power of attorney with her suffer from the same problems as her sisters’ evidence. The statements are not corroborated, but even if they were corroborated and were otherwise admissible, there is no specific time frame as to when the statements were made, other than the general time frame of 1994 to 2008.

[70] The handwritten note appended to Ms. Lubberts’ affidavit, being allegedly a note from her father listing his daughters and grandchildren with a percentage after each person’s name, does constitute some independent corroborating evidence, but it is not “material evidence” as required by s. 13. There is no indication in this note, nor any evidence, as to the possible time frame when this note was made.

[71] The respondent daughters, who all have the same common interest, cannot corroborate the evidence of each others[^11].

[72] Accordingly, I find that the applicant has rebutted the presumption.

[73] In coming to the above decision, I have not considered the evidence of Mr. Brown regarding the deceased’s alleged estrangement from his daughters, and statements made to Mr. Brown by the deceased that the deceased did not want his daughters to inherit anything or that the deceased did not want his daughters contacted on his death. I find that those statements are not corroborated as required by s. 13. Further, I have not considered Mr. Brown’s evidence as to being the contact person at the hospital, which said evidence was not corroborated, but could have been corroborated by hospital records, the production of which could have been compelled as ordered in para. 11 of the order for directions. It follows, that if I am wrong in not having considered the above evidence, then that would only have added to the strength of the applicant’s case.

VON Woodstock

[74] The applicant submits that as all the charities named by the deceased are in Woodstock, Ontario, that the deceased must have intended to benefit the VON in Woodstock, Ontario. However, the deceased used the name “VON Woodstock” in his will when he should have used “VON Oxford”. “VON Woodstock” (from Woodstock, New Brunswick) was served and has not responded. All other residual beneficiaries named in the will consent to payment to VON Oxford of the 10% portion of the residue of the deceased’s estate payable to “VON Woodstock” as set out in the will. I concur with this request.

Final Order

[75] It is to be noted that all of the residual beneficiaries named in the will have consented to a certificate of appointment being made in favour of Mr. Dunphy as the Executor and Trustee if this court finds that the will is not revoked.

[76] For reasons set out above, a final order shall issue as follows:

1. The Will of Gordon Earl Coles, dated March 19, 2003 has been proved and a copy of the Will adduced in evidence and appended as an exhibit to the affidavit of Gary McQuaid shall be admitted to probate as the Last Will and Testament of Gordon Earl Coles, deceased, until such time as the original may be found.

2. A Certificate of Appointment of Estate Trustee with a Will for the Will of Gordon Earl Coles, deceased, dated March 19, 2003 shall be issued to Charles Dunphy, subject to the filing of the appropriate documents with the Court.

3. All amounts required to be paid to VON Woodstock pursuant to the Will of Gordon Earl Coles, deceased, dated March 19, 2003 shall be paid to VON Oxford.

4. If the parties are unable to agree on costs, they shall forward their written submissions on costs, which may be in a letter form, within 30 days addressed to the Family Court, Administrative Assistant at 80 Dundas Street, 2nd Family Law Rules, O. Reg. 114/99., Unit E, London, Ontario, N6A 6A5.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: May 30, 2012

[^1]: See Ettore v. Ettore Estate, 2004 22087 (ON SC) at para. 46 and Slater Estate (Re), 32329 (ON SC) at paras. 3 and 4.

[^2]: 2011 ONCA 764

[^3]: Combined Air Mechanical Services Inc. v. Flesch, supra, paras. 42-44.

[^4]: Combined Air Mechanical Services Inc. v. Flesch, supra, para. 50.

[^5]: See footnote 1.

[^6]: Combined Air Mechanical Services Inc. v. Flesch, supra, paras. 50-58.

[^7]: See also Sorkos v. Cowderoy, 2004 45456 (ON SC) at para. 63, aff’d 2006 31722 (ON CA) at para. 8; Burgar v. Burgar, [2000] O.J. No. 2744, 34 E.T.R. (2d) 169 (ON SCJ) at para. 16.

[^8]: See also Brimicombe and Fogarty v. Brimicombe, 2000 NSCA 67 at para. 61.

[^9]: Lefebvre v. Major, supra at p. 257.

[^10]: See footnote 7

[^11]: See Videchak v. Giarratano, 2009 29914 (ON SC), 2009 CarswellOnt 3336, [2009] W.D.F.L. 3372, 49 E.T.R. (3d) 120 at para. 41.