ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF HELEN OSHCHYPOK, deceased
BETWEEN:
LESZEK LATA
Plaintiff
– and –
GORDON C. RUSH, BARRISTER & SOLICITOR, DENNIS WEBER, PRISCILLA SANTO
Defendants
David J. McGhee, for the Plaintiff
William E.M. Naylor, for the Defendants, Dennis Weber and Priscilla Santo
COURT FILE NO.: 01-920/01
DATE: 20120807
HEARD: November 29, 30, December 1, 2, 5, 6, 2011, January 26 and March 7, 2012
HAINEY J.
Overview
[1] Helen Oshchypok died on February 4, 2001. The cause of her death was related to her chronic alcoholism. Three months earlier, on November 2, 2000, she executed her Last Will and Testament in which she made a number of changes to her previous will that she had executed in October 1997. In her new will she altered a bequest to her relative, Leszek Lata. Under her previous will Leszek was to receive a house at 63 Ninth Street in Etobicoke. Under her new will he received $50,000, and the house at 63 Ninth Street went to Helen’s friend, Dennis Weber.
[2] Helen was born in 1936 and died in February 2001 at the age of 64. She was not married, had no children and was in poor health for most of her life. She had a long history of alcoholism and had been unable to work for many years. Leszek, Helen’s second cousin, was born in Poland and came to Canada in January 1990. Although Helen and her mother, Nancy, did not formally sponsor him, they assisted with his immigration. After he arrived in Canada he moved into a small basement apartment in Nancy’s house in Etobicoke for which he paid monthly rent of $250. For approximately two years, Leszek cared for and assisted Nancy, who was not in good health, free of charge. Although he had a full time job, he regularly cleaned her house, helped Nancy go up and down the stairs, and performed various chores and maintenance work around the house. During his second year in her house, Nancy developed severe stomach problems with pain and diarrhea and often had accidents before she could reach the toilet. Leszek frequently helped her clean up after these accidents. During this period Nancy required much more assistance, and Leszek took on even more responsibility for her care.
[3] In August 1992, Leszek’s wife, Ewa, and their young son joined him from Poland. They continued to live in the basement apartment in Nancy’s house and to pay monthly rent of $250. Ewa took over Nancy’s full time personal care, including washing, bathing, and toileting her. She also did laundry, house cleaning, shopping and cooking for Nancy. In June 1993, Ewa became pregnant by accident and was told by her doctor that she could no longer care for Nancy as the heavy work could put her baby at risk. As a result, Leszek and Ewa had to move out of Nancy’s house as they could no longer look after her and Helen arranged for another couple to move into the house and care for Nancy.
[4] Helen was upset with them for leaving Nancy. She felt they had planned Ewa’s pregnancy and that they had not lived up to their commitment to look after Nancy which she maintained they had given in exchange for the assistance Nancy and Helen gave them in immigrating to Canada. Although their relationship with Helen deteriorated, Leszek and Ewa continued to visit Nancy regularly until her death in March 2000. Although they made efforts to stay in touch with Helen after Nancy’s death, they had very little contact with her.
[5] According to Leszek and Ewa, Nancy and Helen repeatedly promised to leave the house that they owned at 63 Ninth Street in Etobicoke to Leszek in return for the services that he and Ewa had provided to Nancy. Helen did leave the property to Leszek in her 1997 will, a bequest that she changed in her new will in November 2000.
[6] When Helen died in February 2001, her estate was valued at approximately one million dollars. Most of her assets had been inherited from Nancy. Helen left the bulk of her estate to Dennis Weber and Priscilla Santo, both of whom were unrelated to her. Dennis worked for Helen doing maintenance work and repairs to her various rental properties and was the superintendent of an apartment building she owned. He also drove her to medical appointments and did shopping for her. Priscilla was Helen’s next door neighbor and often cooked meals for her and accompanied her to the hospital. Dennis and Priscilla were also major beneficiaries under Helen’s 1997 will. Helen gave Priscilla her power of attorney for her personal care in November 1997 and named Dennis as Priscilla’s substitute attorney for her personal care at the same time.
[7] Leszek challenges Helen’s competence and testamentary capacity and argues that she was unduly influenced or had forgotten or ignored her previous obligations and promises to him when she made her new will in November 2000 and changed her bequest to him from the house at 63 Ninth Street to $50,000.
Order Giving Directions
[8] On December 10, 2002, Mesbur J. granted an order giving directions that established the following issues to be determined at trial:
A. Gordon C. Rush, Dennis Weber, and Priscilla Santos affirm, and Leszek Lata denies that:
(1) the last will and testament of the deceased dated 1 November 2000 (the “Will”) was duly executed by the deceased and should be admitted to probate;
(2) the deceased had knowledge of and approved the contents of the said Will;
(3) the deceased had testamentary capacity at the time the said Will was executed.
B. Leszek Lata affirms, and Gordon C. Rush, Dennis Weber, and Priscilla Santos deny that the making of the said Will was procured by undue influence.
[9] The trial proceeded before me pursuant to Justice Mesbur’s order. One additional issue was raised at trial, which is set out in paragraphs 1(e), (f) and (g) of the plaintiff’s amended amended statement of claim as follows:
- The plaintiff claims:
(e) a declaration that the defendants or any of them have been unjustly enriched by virtue of the aforesaid Will dated 1 November 2000;
(f) a declaration the defendants hold certain real property owned by the deceased at the time of her death, namely 63 9th Street, Toronto, subject to a constructive or resulting trust in favour of the plaintiff; and
(g) monetary damages against the beneficiaries of the aforesaid Will dated 1 November 2000 or any of them and transfer of title to the aforesaid property for services rendered to the deceased and her mother on the basis of quantum meruit, quantum valebat and constructive trust.
The Trial
[10] The trial, which involved seven days of testimony, commenced on November 29, 2011 and concluded on March 7, 2012. Although Gordon Rush, Helen’s lawyer who acted for her in connection with her wills, was named as a defendant in the action, he died before the trial commenced and the action only proceeded to trial against Dennis and Priscilla. At the commencement of the trial, Leszek’s counsel filed a joint document brief consisting of four volumes of documents that both parties agreed were admitted into evidence for the truth of their contents. This included correspondence between Mr. Rush and Leszek’s counsel, a report of a handwriting expert, Dan Purdy, and extensive medical records relating to Helen. At trial, Leszek, Ewa, Dennis and Priscilla testified and Randy Lynch and Annette Gray also testified on behalf of the defendants. Leszek’s counsel filed a factum setting out the legal principles that both counsel agree are applicable to this case. The factum sets out the following four basic grounds on which to challenge the validity of a will:
The will does not comply with the requirements of execution under the Succession Law Reform Act, R.S.O. 1990.
The deceased lacked testamentary capacity when he or she made the will.
The deceased lacked the knowledge and approval of the contents of the will.
Another party exercised undue influence over the testator when he or she made the will.
Evidentiary Ruling
[11] Dennis and Priscilla brought a motion to admit into evidence at trial Mr. Rush’s affidavit sworn September 11, 2001, as proof of the truth of its contents.
[12] As indicated above, Mr. Rush was a lawyer who acted for Helen and her parents for approximately 30 years. He drafted her previous will in October 1997 and was present when Helen executed her new will in his office on November 2, 2000. He swore an affidavit on September 11, 2001, which was filed in response to Leszek’s application to revoke the certificate of appointment of estate trustee with a will. He was never cross-examined on his affidavit and he died before the trial commenced.
[13] Dennis and Priscilla seek to have his affidavit admitted into evidence at trial pursuant to Rules 39.01, 39.02 and 53.02 of the Rules of Civil Procedure. In the alternative, they rely upon the principled exception to the hearsay rule on the basis of the necessity and reliability of his evidence.
Position of the Parties
[14] Dennis and Priscilla submit that Mr. Rush’s affidavit should be admitted under the Rules of Civil Procedure because it was considered by Justices Molloy, Mesbur and Benotto in previous applications without reply, challenge, cross-examination or any request to cross-examine. They maintain that Leszek, who elected not to cross-examine Mr. Rush on his affidavit, is therefore estopped from objecting to the admissibility of the evidence on the basis of his inability to cross-examine him. Further, they submit that if Mr. Rush were alive and able to be cross-examined, it is unlikely that he would change the contents of his affidavit, particularly because the statements he made in it are the same as the information previously provided by him in 2001 in response to Leszek’s counsel’s demands for information.
[15] In the alternative, Dennis and Priscilla submit that the affidavit should be admitted into evidence under the principled exception to the hearsay rule. They argue that it is necessary because Mr. Rush is dead. Further, they argue that it is reliable because it was sworn by Mr. Rush, who had been a practising lawyer for 40 years when he swore it. Further, Mr. Rush’s description of the execution of the will accords with the accepted and expected formalities of execution of a lawyer, and his description of his long history of providing legal services to Helen and her family is not controversial. They rely upon the decision of the Supreme Court of Canada in the case of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 and the decision of Corbett J. in Cormack Animal Clinic Ltd. v. Potter, 2009 O.J. No. 141.
[16] Leszek submits that Rule 53.02 (1) does not apply to the determination of the admissibility of this type of evidence at trial. He argues that it can only be admissible under the principled exception to the hearsay rule. Although Leszek concedes that the necessity branch of the principled exception to the hearsay rule has been satisfied because of Mr. Rush’s death, he submits that the evidence should not be admitted because it is not sufficiently reliable for many reasons, the most important of which is that the affidavit was not a spontaneous declaration made by a disinterested person, but was made by a party in a legal proceeding who had a reason to protect and favour his own interest. Further, Leszek argues that Mr. Rush was not cross-examined on his affidavit and repeatedly avoided attending for his examination for discovery. Accordingly, Leszek submits that the evidence should not be admitted for the truth of its contents because it is both deficient and unreliable.
Conclusion
[17] I agree with Leszek that this type of evidence should not be admitted under Rule 53.02 (1) of the Rules of Civil Procedure. This was the conclusion arrived at by Corbett J. in the Cormac Animal Clinic case, with which I agree. Accordingly, if the evidence is to be admitted, it must be under the principled exception to the hearsay rule.
[18] The leading authority on the principled exception to the hearsay rule is R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, in which the Supreme Court of Canada established a more flexible approach for the admission into evidence of hearsay evidence founded upon the requirements of necessity and reliability.
[19] The Supreme Court made it clear in the subsequent decision of Khelawon at paragraph 4 that in determining the admissibility of hearsay evidence,
…all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradicting evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.
Charron J. elaborated further on this point at paragraph 49 of the court’s decision as follows:
The broader spectrum of interest encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interest of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.
Charron J. went on to describe the circumstances in which hearsay evidence may be admitted as follows at the same paragraph:
In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness.
[20] Leszek’s reply submission addresses the failure to cross-examine Mr. Rush in part as follows at paragraphs 7 and 8:
The medical evidence filed on the return of the Application overwhelmingly confirmed the deceased’s chronic alcoholism and other medical conditions. In view of this, it was considered to be unnecessary to cross-examine Rush or Gray on their affidavits…
Due to the quantity of medical evidence, the plaintiff did not cross-examine Rush on his affidavit.
[21] In my view, Mr. Rush’s affidavit meets the reliability test required for its admission into evidence under the principled exception to the hearsay rule. It was given by him under oath less than one year after Helen had made her new will. The statements made in the affidavit are consistent with the information he provided in his extensive correspondence with Leszek’s legal counsel in 2001. A good deal of his affidavit relates to the history of his legal representation of Helen and her parents and is not controversial. Further, his affidavit evidence is corroborated in many respects by the testimony of his former secretary, Annette Gray, and the expert opinion evidence of Dan Purdy. Under these circumstances, and taking into account all of the evidence, and Leszek’s decision not to cross-examine him at the time the affidavit was filed, I find that the contemporaneous cross-examination of Mr. Rush on his affidavit would have added little, if anything, to the process. I therefore conclude that his affidavit is both necessary and sufficiently reliable to admit it under the principled exception to the hearsay rule.
Issues
[22] The issues that must be determined in this trial are:
Whether Helen’s new will was duly executed and admitted to probate;
Whether Helen had the requisite knowledge and testamentary capacity to make the new will;
Whether Helen was unduly influenced to make the new will; and
Whether Leszek is entitled to the property at 63 Ninth Street for services rendered to Helen and her mother on the basis of quantum meruit, quantum valebat and constructive trust.
[23] The parties agree that Dennis and Priscilla have the onus of proving due execution and knowledge and approval of the contents of the will by Helen and that she had testamentary capacity at the time the will was executed. They also agree that Leszek has the onus of proving undue influence, although Leszek submits that there are suspicious circumstances that give rise to a rebuttable presumption of undue influence and the onus, therefore, reverts to Dennis and Priscilla to prove there was no undue influence. It is agreed that the standard of proof is the civil standard of proof on a balance of probabilities.
Issue Number 1 - Was Helen’s will duly executed and admitted to probate?
Position of the Parties
[24] Leszek submits that Dennis and Priscilla have the burden of proving the will in solemn form and its due execution. He argues that in the absence of any reliable evidence from Mr. Rush or the two witnesses to the execution of the will by Helen, the will cannot be proved in solemn form and its due execution by Helen has not been established.
[25] Dennis and Priscilla submit that the evidence of Mr. Rush, Ms. Gray and Mr. Purdy establishes on a balance of probabilities that the will was duly executed by Helen in compliance with the formalities of the Succession Law Reform Act, R.S.O. 1990. Further, they argue that the documentary evidence at tab 11 of Exhibit 1 establishes that the Certificate of Appointment of Estate Trustee with a Will was issued on April 10, 2000, following which the estate trustees proceeded to administer the estate.
Conclusion
[26] I agree with Dennis and Priscilla that it has been established on a balance of probabilities that the will was duly executed and admitted to probate for the reasons cited by them. I am satisfied on the evidence that sections 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, were complied with and, accordingly, Leszek’s claim on this ground fails. However, the real issues in this case are not the formal execution or the admission to probate of the will, but Helen’s testamentary capacity, and whether she was unduly influenced when she made the will.
Issue Number 2 - Did Helen have the requisite knowledge and testamentary capacity to make the will?
Position of the Parties
[27] Leszek submits that Helen lacked competence or testamentary capacity when she made her will. According to his submissions, “the medical and other evidence amply supports the reasonable suspicion that the deceased lacked testamentary capacity and was unduly influenced when she revised her will in November 2000.” Leszek relies upon the extensive medical records that reveal Helen’s long history of chronic alcoholism, liver disease, anxiety, depression and numerous other ailments in support of this position. According to Leszek, the medical records “leave no doubt that Helen Oshchypok was a severe alcoholic for many years prior to her death and that she died of alcohol-related causes. Her condition was further complicated by underlying severe and persistent psychiatric illness.” Leszek maintains that there is good reason to believe that Helen’s will was made when she “was terminally ill and suffering from the effects of alcohol dependency and had given up on all further treatment and was suffering from paranoia and delusional thinking and that her testamentary capacity was impaired.” Leszek further submits that Mr. Rush was negligent and did not adequately enquire into Helen’s testamentary capacity at the time she changed her will and that his opinion that she had testamentary capacity is, therefore, unreliable.
[28] Dennis and Priscilla submit that the circumstances surrounding the preparation and execution of the will by Helen make it clear that she fully understood the nature and effect of her new will and that she had testamentary capacity. They cite the following facts in support of this position:
Helen’s handwritten instructions for the will were written on her previous will on three different occasions;
Helen discussed her instructions and the changes she was making to her previous will with Annette Gray and explained why she was changing her bequest to Leszek;
Ms. Gray prepared the new will in accordance with Helen’s instructions as discussed between them;
Helen attended Mr. Rush’s office on November 2, 2000 to execute the new will, read it over before she signed it, initialed each page and even corrected the word “trustee”;
Helen used her previous will as a template, the new will disposed of all of her property and the beneficiaries are generally the same as in her previous will;
The revisions are clear, direct, straightforward and reasonable and were explained by Helen to Ms. Gray;
According to Mr. Rush’s affidavit, he reviewed the new will with her prior to her signing it, and she was well aware of its contents and approved it. She then signed it in the presence of two legal assistants who worked in the same building;
The handwriting expert, Dan Purdy, is of the opinion that Helen wrote the changes on the previous will and signed it;
Both Ms. Gray and Mr. Rush believed Helen fully understood what she was doing and clearly understood and appreciated the effect of her new will.
[29] Dennis and Priscilla argue that this evidence establishes on a balance of probabilities, if not conclusively, Helen’s knowledge and approval of the contents of the will and her testamentary capacity.
Conclusion
[30] The Supreme Court of Canada made it clear in Re Poirier Estate, 1944 CanLII 1 (SCC), [1944] S.C.R. 152, that executors propounding a will have the onus of affirmatively proving testamentary capacity by a preponderance of credible evidence. A capable testator is one possessed of a sound mind, memory and understanding. A person with a sound, disposing mind must be able to recall the extent of her property and the nature of the claims to which she ought to give effect. There must be no disorder of the mind and no insane delusions. Alcoholism of sufficient extent and duration to cause brain damage may affect testamentary capacity although even a habitual drunkard while not under the excitement of liquor is capable of making a valid will.
[31] In Hynes v. Borins, [1972] O.J. No.196, Lacourciere J. held that the burden on the executors is generally discharged by proof of capacity and the fact of execution from which the knowledge of and assent to the contents of the instrument are assumed. The law generally presumes sanity or competent understanding and a will rational on its face and properly executed is presumed to have been made by a competent and capable testator, unless there are circumstances raising well-grounded suspicion that the document does not really express the true will of the deceased.
[32] According to J.A. Blishen J. in Royal Trust Corp. of Canada v. Saunders, 2006 O.J. No. 2291 at paragraph 58,
Testamentary capacity is established where the testator:
Understands the nature and effect of the will;
Recollects the nature and extent of his or her property;
Understands the extent of what he or she is giving under the will;
Remembers the people he or she might be expected to benefit under his or her will; and
Understands the nature of the claims that may be made by persons he or she is excluding under the will.
[33] In Ostrander v. Black, [1996] O.J. No. 1372, Grainger J. pointed out that a mere allegation of lack of capacity of a testator is not sufficient to defeat the presumption of knowledge and approval of the contents of a will and testamentary capacity once it is established that the testator read over the will, appeared to understand it, signed it, and the signing was attested to by witnesses, and the formalities of the Succession Law Reform Act were complied with. Under such circumstances the attacker of the will must establish an evidentiary foundation that supports the theory that the testator lacked capacity or did not approve or understand the contents of the will.
[34] Leszek relies upon the medical evidence contained in Exhibits 1 and 2 in support of his position that Helen lacked testamentary capacity. I agree with the defendants’ submissions that there is no suggestion in any of the medical records that Helen was incompetent or suffering from any incapacity or mental disorders at the time she executed her will in November 2000. Helen’s family doctor, Dr. Donald Kapusta, provided a report to Leszek’s counsel dated January 21, 2002, in which he stated in part as follows:
Helen Oshchypok suffered from the sequelae of chronic alcoholism and depression. Helen often directed her own medical care without involving me in the process. She often refused treatment for her medical conditions, and on October 24, 2001, Helen once again refused my offers of medical assistance. I have no evidence to confirm her overall mental competence based on that encounter. I believe that a psychiatrist was involved in Helen’s care, but no reports were ever forwarded to me. The issue of her chronic alcoholism may raise some questions of her competence, but I would suggest that you seek the opinion of her treating physicians at St. Michael’s Hospital and St. Joseph’s Hospital to help establish this.
[35] Dennis and Priscilla’s counsel requested clarification from Dr. Kapusta about whether Helen’s refusal of treatment indicated she was incompetent and how the issue of her chronic alcoholism raised questions about her competence. Dr. Kapusta responded in part as follows:
I do not have an independent recollection of my encounter with Helen Oshchypok on October 24, 2000.
In my clinical record of that encounter, I do not have any evidence that Helen Oshchypok did not understand her medical issues, or the treatment options being offered to her.
[36] Dennis and Priscilla’s counsel also obtained a report from Dr. Ajay Kapur, Helen’s treating physician during her last hospitalization from January 22, 2001 to February 4, 2001 at St. Joseph’s Health Centre. In his report, Dr. Kapur stated in part as follows:
My first contact with Helen Oshchypok was on Jan 26 1999 at St. Joseph’s Health Centre. At that time she was admitted with multiple medical problems the details of which I will not go into as it is quite extensive. She was discharged on February 10, 1999 in a more stable condition with follow-up arranged with myself in a community health clinic at the hospital. During her admission and further follow-up there did not appear to be any suggestion that Helen was incompetent to make medical decisions. She appeared to understand her medical issues and the treatments that were required at that time.
She was readmitted to the hospital on Oct 10, 2000 and discharged on Oct 12, 2000 and again at that time she appeared to understand her medical issues as well as the testing and treatment required.
Helen’s last admission was on Jan 22, 2001 and she died in the hospital on Feb 4, 2000. On that admission her medical condition had deteriorated significantly. For most of the time Helen did understand her medical condition, however around Jan 27, 2001 there was a decline in her level of consciousness at least partially related to sepsis and hepatic encephalopathy. From that time onwards until her death on Feb 4, 2001 she remained in an encephalopathic state and was not capable of making any decisions.
[37] Leszek relies heavily on a report from a gastroenterologist with the Western Surgical Group dated December 12, 1977 in which the reporting physician stated in part as follows:
As you know, I left for a week’s holidays two days after Helen came in, so much of what I am about to tell you was done by the gastroenterologists in my absence.
In short, as you know, she is a grossly inadequate personality who has been engaged in heavy drinking of vodka for the last 13 years. I gather recently she has had more than one bottle of vodka per day and that this has presumably exascerbated [sic] since she failed to get a job earlier this year. She finds that her drinking is quite severe at her times of unemployment.
[38] Leszek argues that a “grossly inadequate personality” is also known as a dependant personality disorder and tended to make Helen clinically dependant and susceptible to being influenced or dominated by others. I agree with Dennis and Priscilla’s submissions that there is no expert evidence to support this submission and that the author of the 1977 report appears to have been a gastroenterologist who would not have been qualified to make a psychiatric diagnosis of Helen. Further, his comment was made approximately 23 years before Helen made her will. In view of these factors I attach very little weight to this evidence and I do not believe it, in any way, establishes that Helen lacked testamentary capacity when she made her will in November 2000.
[39] Dennis and Priscilla rely upon Annette Gray’s and Mr. Rush’s evidence that Helen understood the nature and effect of her will and clearly had testamentary capacity in November 2000. I found Annette Gray to be a credible and reliable witness. Her evidence was consistent with an affidavit she swore in September 2001 that Leszek’s counsel cross-examined her on, and which he filed as an exhibit. Further, I am satisfied with her explanation about why she did not attend court earlier when requested to do so. According to her, she had dealings with Helen over many years and the two became friends and would often talk over the telephone about personal matters. However, she also testified that Helen was a demanding client and when it came to business, Helen was business first and insisted on immediate attention.
[40] In October 2000, Helen called her and said she wanted to change her will because of certain changes in her circumstances. She had photocopied the will she had made in 1997 and hand wrote instructions on it indicating what she wanted changed. She was very insistent that the will be done immediately. Ms. Gray and Helen went over the new will paragraph by paragraph and discussed it at great length. According to Ms. Gray, Helen was very meticulous in her instructions regarding the will and even corrected spelling mistakes that she found in the draft. Ms. Gray testified that she was surprised to learn that Helen had a drinking problem as she was always certain with her instructions and knew what she wanted and she never slurred her words or appeared to be under the influence of alcohol.
[41] Helen discussed with Ms. Gray the change she was making to her bequest to Leszek from the house at 63 Ninth Street to $50,000. Helen explained that Leszek had told her he did not want the house or to live in the neighborhood and she thought $50,000 would be enough for a down payment on another house and Leszek could live wherever he wanted. Ms. Gray testified that Helen was upset that Leszek and his wife had not lived up to their bargain to look after her mother after they came to Canada. She also told her that over the years she had become closer to Dennis and Priscilla and she had decided that they deserved to receive more than Leszek.
[42] Helen also told Ms. Gray that she was very upset with Leszek and his wife as they were no longer involved in her life and never visited her. She said that if it were not for the fact that her mother would want her to leave something to Leszek, she would have left him nothing under her new will.
[43] Under cross-examination by Leszek’s counsel, Ms. Gray testified that Helen called her a number of times to complain that Leszek and his wife did not visit her. Helen said she felt they had abandoned her mother and that it was one of Helen’s “main upsets in life” that they wanted nothing to do with her and were no longer in touch as a family.
[44] When pressed under cross-examination she testified that Helen said, “if they don’t want to live here then fuck them they can buy a house somewhere else.” I accept Ms. Gray’s evidence that Helen specifically adverted to the change she was making in her bequest to Leszek and that she had a rational and calculated reason for doing so and appeared to understand what she was doing.
[45] In his affidavit Mr. Rush testified that Helen “was a strong willed, no nonsense and demanding client.” He was surprised to learn that she was a chronic alcoholic because he never saw her drunk or impaired and she never smelled of alcohol. She never appeared to him to be “distracted, distraught or distressed and displayed none of the physical or mental debilitation one would associate with gross addiction to alcohol.” Further, in his dealings with her “she was certainly aware of what she was doing and had full control of her faculties especially those dealing with the financial aspects of her life.” He testified that he had no doubt that she had testamentary capacity when she executed her will.
[46] I accept Ms. Gray’s and Mr. Rush’s evidence as to Helen’s testamentary capacity. I do not accept Leszek’s submission that the relatively modest bequests to each of them in the amount of $5,000 have any bearing on their credibility or reliability as witnesses. In my view, their evidence establishes that Helen understood the nature and effect of the new will she made on November 2, 2000. Further, it establishes that she recollected the extent of her property, understood the extent of what she was giving under her will, remembered the people she might be expected to benefit under her will and understood the nature of the claims that may be made by persons she excluded under her will. I find, therefore, that Dennis and Priscilla have established on a balance of probabilities that Helen had the necessary testamentary capacity when she made her will on November 2, 2000 and Leszek’s claim on this ground fails.
Issue Number 3 - Was Helen unduly influenced to make the will?
Position of the Parties
[47] Leszek submits that Helen “was somehow unduly influenced to change the bequest” to him under her new will. He submits that she was vulnerable to being unduly influenced because of her chronic alcoholism, her social isolation and her poor health. Leszek maintains that Dennis and Priscilla, the major beneficiaries under her will, were well aware of Helen’s declining health and excessive drinking and the nature of their relationships with her gives rise to a presumption of undue influence.
[48] According to Leszek, Dennis and Priscilla, who were not related to Helen, both had the opportunity and motive to gain financially from her physical and emotionally dependant condition. Leszek alleges that they encouraged and took advantage of her dependant condition for their own personal gain notwithstanding that they both owed fiduciary and trust obligations to Helen as executors, trustees and major beneficiaries under her will. As a result of their relationships with Helen, Leszek argues that undue influence is presumed and the onus of proof shifts to them to disprove it, which they have not done.
[49] Dennis and Priscilla, on the other hand, submit that the onus of proving undue influence rests with Leszek and that it is not sufficient to merely establish that they had the power to coerce Helen but Leszek must show that they exercised overbearing power, and as a result, the bequests were made by her. According to Dennis and Priscilla, suspicion of undue influence is not sufficient; Leszek must prove actual coercion. They argue that there is no evidence of actual coercion by either of them, and although they were thoroughly cross-examined, nothing in their evidence established even a suspicion that either of them asserted any influence over Helen in respect of her will.
Conclusion
[50] Proof of undue influence requires proof of coercion. As Cullity J. held in Banton v. Banton, 1998 CanLII 14926 (ON SC), [1998] O.J. No. 3528,
A testamentary disposition will not be set aside on the ground of undue influence unless it is established on the balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not the deceased.
[51] In Duschl v. Duschl Estate, [2008] O.J. No. 1422, Taliano J. held as follows:
To constitute undue influence, there must be coercion. The attackers of the will must prove that the mind of the testator was overborne by the influence exerted by another person such that there was no voluntary approval of the contents of the will.
[52] Accordingly, it must be established that Helen’s mind was overborne by influence exerted by Dennis and Priscilla so that there was no voluntary approval by her of the contents of her will. It is not sufficient to establish that Dennis and Priscilla had the power to coerce her; it must be established that they did, in fact, coerce her to change her bequest to Leszek.
[53] The Supreme Court of Canada dealt with a claim of undue influence that occurred under suspicious circumstances in Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876. Cullity J. summarized the principles established in that decision in Scott v. Cousins, [2001] O.J. No. 19 in part as follows:
The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:
The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
A person opposing probate has the legal burden of proving undue influence.
The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption…
This presumption “simply casts an evidential burden on those attacking the will.”
The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, “evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.”
The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.
A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will:
…It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect to fraud and undue influence remains with those attacking the will.
[54] I do not agree with Leszek’s submission that “it is for the defendants to disprove undue influence,” as I am of the view that the burden of proof to establish undue influence remains with Leszek. However, I find, in any event, that there is no evidence that either Dennis or Priscilla exerted any coercion or influence of any kind on Helen to cause her to change her bequest to Leszek. Therefore, even if I accept Leszek’s position with respect to the burden of proof, I find that Dennis and Priscilla have rebutted any presumption of undue influence on their part.
[55] I find Dennis and Priscilla to be credible and reliable witnesses in describing their relationship with Helen, which clearly became closer in later years. Under cross-examination they were not confronted with any instances when either of them did anything that could be described as coercion or the exercise of influence over Helen in respect of her will. Further, Leszek in his submissions has not identified any specific instances of such conduct. It is also significant that they were major beneficiaries under her previous will made in 1997. It is not alleged that she lacked testamentary capacity or was unduly influenced when she made that will, under which Leszek was to receive the house at 63 Ninth Street. There is, accordingly, no evidence of any coercion by them and there is credible and reliable evidence that explains Helen’s change in her bequest to Leszek.
[56] As I have already indicated, I find Ms. Gray’s evidence to be compelling about why Helen reduced her bequest to Leszek in her new will. According to Ms. Gray, Helen was very upset that he and Ewa were no longer involved in her life. Further, she testified that Helen said that Leszek did not want to live in the neighborhood and she felt that $50,000 would give him enough for a down payment on a house wherever he wanted to live. I accept Ms. Gray’s evidence on this issue and I find that there is no basis for Leszek’s allegation that Helen was coerced or unduly influenced to make this decision concerning her bequest to him.
[57] In conclusion, even if I accept Leszek’s contention that there is a presumption of undue influence because of the nature of the relationship between Helen and Dennis and Priscilla, I am satisfied that it has been rebutted since there is no evidence of any undue influence on the part of Dennis or Priscilla and Leszek’s claim on this ground, therefore, fails.
Issue Number 4 – Is Leszek entitled to the property on Ninth Street on the basis of quantum meruit, quantum valebat and constructive trust?
Position of the Parties
[58] Leszek seeks a declaration that Dennis and Priscilla have been unjustly enriched by virtue of Helen’s will and that they hold 63 Ninth Street subject to a constructive or resulting trust in his favour. He seeks damages against them and transfer of title to the property for services rendered to Helen and Nancy, on the basis of quantum meruit, quantum valebat and constructive trust. Leszek’s claim is based upon repeated promises by Nancy and Helen to leave the house at 63 Ninth Street to him in recognition of and compensation for the services and care he and Ewa provided to them. Leszek maintains that there is no juristic reason to allow Dennis and Priscilla to retain the benefit of their unjust enrichment at his expense.
[59] Dennis and Priscilla submit that Leszek and Ewa agreed to care for Nancy in consideration of Helen’s and Nancy’s assistance in helping them immigrate to Canada. They then abandoned Nancy when Ewa became pregnant, and thereafter they were not close to Helen and did not provide any further services to Nancy. They maintain that the promises by Nancy and Helen that they would leave the house at 63 Ninth Street to Leszek were gratuitous promises that are not enforceable. They rely upon the Supreme Court of Canada’s decision in Deglman v. Brunet Estate, 1954 CanLII 2 (SCC), [1954] S.C.R. 725 in which the Supreme Court dealt with a similar case and held that there could be no entitlement to a declaration of trust in respect of property unless the services had been provided to that property. However, the Supreme Court found that Deglman was entitled to quantum meruit damages based on unjust enrichment. Dennis and Priscilla submit that Leszek is at best entitled to quantum meruit damages and the $50,000 bequest left to him by Helen more than satisfies any such claim.
Conclusion
[60] I accept Leszek’s and Ewa’s evidence that Nancy and Helen promised on a number of occasions to leave Leszek the house at 63 Ninth Street. I also accept their evidence that they performed valuable services for Nancy and Helen by caring for Nancy while they lived in her home for approximately three and a half years. I do not, however, consider those promises to have established a constructive or resulting trust in favour of Leszek in respect of the property at 63 Ninth Street for the same reasons as articulated by the Supreme Court of Canada in the Deglman case. The Supreme Court of Canada has made it clear that for a constructive trust to arise in respect of property there must be a direct link between the contribution and the property. In Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, McLachlin J. commented upon constructive trusts as follows at paragraphs 25-26:
…Where a monetary award is sufficient, there is no need for a constructive trust. Where a monetary award is insufficient in a family situation, this is usually related to the fact the claimant’s efforts have given him or her a special link to the property, in which case a constructive trust arises.
For these reasons, I hold the view that in order for a constructive trust to be found, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed…
[61] As there is no link between the services rendered by Leszek and Ewa in caring for Nancy and the property at 63 Ninth Street, a constructive trust in respect of the property cannot arise in favour of Leszek.
[62] Leszek also relies upon the decision in Reid Estate v. Reid, [2010] O.J. No. 1815 in support of his submission that the property at 63 Ninth Street was subject to a resulting trust in favour of Nancy who intended that the property be transferred to him. However, the facts of this case are different from the facts in Reid Estate, which involved a resulting trust claim in respect of the transfer of property to one of two brothers where their mother had left her estate equally to both of them. I do not agree with Leszek’s contention that when Helen transferred 63 Ninth Street to herself from joint tenancy with Nancy that the property was subject to a resulting trust in favour of Nancy who intended that the property be transferred to Leszek. The evidence simply does not support this contention.
[63] Although I find that the evidence does not support the establishment of a constructive or resulting trust in respect of the property in favour of either Leszek or Nancy, it does support a quantum meruit claim by Leszek for the services and care he and Ewa provided to Nancy while they were living in her home for approximately three and a half years.
[64] In Peter v. Beblow, McLachlin J. stated as follows at paragraph 3:
An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief made out. At this point, a second doctrinal concern arises: the nature of the remedy. “Unjust enrichment” in equity permitted a number of remedies, depending on the circumstances. One was payment for services rendered on the basis of quantum meruit or quantum valebat…
[65] I am satisfied that Leszek meets the test set out in Peter v. Beblow and that he is entitled to payment for the services rendered to Nancy on a quantum meruit basis.
[66] There was evidence from Leszek and Ewa about the nature of the services rendered to Nancy, which included housekeeping, cooking and extensive personal care for her. However, there was no evidence as to the monetary value of those services that were rendered between 1990 and 1993. In my view, Leszek had the burden of establishing the monetary value of his quantum meruit damage claim against Helen’s estate. In order to award him damages in excess of the $50,000 he received under Helen’s will, there must be evidence establishing the value of those services. In the absence of any such evidence I am unable to conclude that the $50,000 amount received by him under Helen’s will is not adequate compensation for the services rendered to Nancy. In order to assess the value of those services at a greater amount, on the evidentiary record before me, would require me to engage in speculation and guesswork, which I cannot do.
[67] Accordingly, on the evidence before me I find that Leszek has not established an entitlement to damages in excess of $50,000 in consideration for the services rendered to Nancy. Leszek’s claim on this ground, therefore, fails.
Costs
[68] I urge the parties to settle the issue of costs. However, if the parties are unable to agree on costs I will receive written submissions from each party of no longer than five pages double spaced with a Bill of Costs attached within 60 days of the date of this decision.
HAINEY J.
Released: August 7, 2012
COURT FILE NO.: 01-920/01
DATE: 20120807
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF HELEN OSHCHYPOK, deceased
BETWEEN:
LESZEK LATA
Plaintiff
- and -
GORDON C. RUSH, BARRISTER & SOLICITOR, DENNIS WEBER, PRISCILLA SANTO
Defendants
REASONS FOR JUDGMENT
HAINEY J.
Released: August 7, 2012